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Civil Procedure

CIVIL PROCEDURE

PART ONE

ORDINARY CIVIL ACTIONS

I. CASE BEGINS WITH THE FILING OF COMPLAINT

1. Preliminary

1. Definition of complaint

A complaint is a pleading alleging a plaintiff’s cause or causes of action. The names and residences
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of the plaintiff and defendant must be stated in the complaint.

2. Requirements

2.1 Verification

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations
therein are true and correct of his personal knowledge or based on authentic records. A pleading
required to be verified which contains a verification based on "information and belief" or upon
"knowledge, information and belief," or lacks a proper verification, shall be treated as an unsigned
2
pleading. Absence of verification when required is not a jurisdictional defect. It is just a formal defect
3 4
which can be waived. The verification by a lawyer is sufficient.

2.2 Certificate against forum-shopping

An important component of a complaint or any initiatory pleading is the certificate of non-forum


shopping. The rule requires that the plaintiff or principal party certifies under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith:

(a) that he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein;

(b) if there is such other pending action or claim, a complete statement of the
present status thereof; and

(c) if he should thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days therefrom to the court

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wherein his aforesaid complaint or initiatory pleading has been filed.

2.2.1 Nature

(a) The required certificate of non-forum shopping is mandatory but not


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jurisdictional.

(b) Initiatory pleadings are the complaint, permissive counterclaim, cross-claim, third-
party (fourth-party, etc.), complaints and complaints-in-intervention. The certificate of
non-forum shopping should be signed by the plaintiff (permissive counterclaimant,
cross-claimant, third-party, etc. – plaintiff and plaintiff-in-intervention) and not the
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counsel.

(c) There is forum shopping when, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion (other than by appeal or certiorari) in other fora, or
when he repetitively avails himself of "several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same issue or
transactions involving the same essential facts and circumstances, and all raising
substantially the same issues either pending in or resolved adversely by some other
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court." Elsewise stated, forum shopping exists where the elements of litis pendentia
are present or where a final judgment in one case will amount to res judicata in the
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other. Where judgment has already become final and executory, res judicata and
not forum shopping should be pleaded as a defense. Forum shopping applies only
10
when two (2) or more cases are still pending.

(d) Failure to comply with the requirement of a certificate of non-forum shopping


may not be cured by mere amendment of the complaint or other initiatory pleading.
The initiatory pleading should be dismissed without prejudice, unless otherwise
provided, upon motion and after hearing. However, even if there is a certificate of
non-forum shopping, if the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for summary dismissal
with prejudice of the initiatory pleading and shall constitute direct contempt, as well
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as a cause for administrative sanctions against the former.

2. Filing of Complaint

1. Manner

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Filing of the complaint is the act of presenting it to the Clerk of Court. This may be done by
presenting the original copy plainly indicated as such, personally to the clerk of court or by sending it
by registered mail to the clerk of court. In personal filing, the date and hour of receipt by the clerk of
court as indicated on the face of the complaint is the date and hour of filing. In filing by registered
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mail, the date of posting appearing on the envelope shall be considered the date of filing.

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Filing of a complaint by mail other than through registry service of the government postal agency is
not authorized. Thus, if a complaint is mailed through any private letter-forwarding agency, the date
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of receipt by the clerk of court is the date of filing.

Filing of the complaint should be distinguished from service of pleadings subsequent to the filing of
15 16
the complaint. In service of pleadings, priorities in modes of service must be strictly observed.

2. Payment of docket and other lawful fees

17
Ballatan v. Court of Appeals, summarizes the rules on payment of docket fees:

(a) The rule in this jurisdiction is that when an action is filed in court, the complaint must be
accompanied by the payment of the requisite docket and filing fees.

(b) In real actions, the docket and filing fees are based on the value of the property and the
amount of damages claimed, if any, which must be specified in the body and prayer of the
complaint. Note that in Tacay v. RTC of Tagum Davao del Norte, the Supreme Court opined
that a real action may be commenced or prosecuted without an accompanying claim for
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damages.

(c) If the complaint is filed but the fees are not paid at the time of filing, the court acquires
jurisdiction upon full payment of the fees within a reasonable time as the court may grant,
barring prescription.

(d) Where the fees prescribed for the real action have been paid but the fees of certain
related damages are not, the court, although having jurisdiction over the real action, may not
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have acquired jurisdiction over the accompanying claim for damages.

(e) Accordingly, the court may expunge those claims for damages, or allow, on motion, a
reasonable time for amendment of complaint so as to allege the precise amount of damages
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and accept payment of the requisite legal fees.

(f) If there are unspecified claims, the determination of which may arise after the filing of the
complaint or similar pleading, the additional filing fee thereon shall constitute a lien on the
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judgment award.

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(g) The same rule also applies to third-party claims and other similar pleadings.

Note: Even if the value of a property is immaterial in the determination of the court’s jurisdiction, it
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should however be considered in the determination of the amount of docket fee.

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1
Rules of Court, Rule 6, Sec. 3.
2
Rules of Court, Rule 7, Sec. 4, as amended by A. M. No. 002-10-SC.
3
Philippine Bank of Commerce v. Macadaeg, 109 Phil. 981 [1960]; Buenaventura v. Uy, No. L-28156, March 31,
1987, 149 SCRA 22.
4
Uy v. Workmen’s Compensation Commission, L-43389, April 28, 1980, 97 SCRA 255.
5
Rules of Court, Rule 7, Sec. 5.
6
Robern Development Corp. v. Quitain, G.R. No. 135042, September 23, 1999, 315 SCRA 150.
7
Five-Star Bus Company v. Court of Appeals, G.R. No. 127064, August 31, 1999, 313 SCRA 367.
8
Spouses Diu v. Ibajan, G. R. No. 132657, January 19, 2000.
9
Buan v. Lopez, No. L-75349, October 13, 1985, 145 SCRA 34.
10
Employees Compensation Commission v. Court of Appeals, G.R. No. 115858, June 26, 1996, 257 SCRA 717.
11
Rules of Court, Rule 7, Sec. 5.
12
Rules of Court, Rule 13, Sec. 2.
13
Ibid., Sec. 3.
14
Benguet Electric Cooperative, Inc v. National Labor Relations Commission, G. R. No. 89070, May 18, 1992, 209
SCRA 55.
15
Rules of Court, Rule 13, Sec. 4.
16
Ibid., Sec. 11.
17
G. R. No. 125683, March 2, 1999 304 SCRA 34.
18
Tacay v. Regional Trial Court of Tagum, G. R. Nos. 88075-77, December 20, 1989, 180 SCRA 483.
19
Original Development and Construction Corporation v. Court of Appeals, G. R. No. 94677, October 15, 1991, 202
SCRA 753.
20
Ibid.
21
Ibid.
22
Sun Insurance Office Ltd. v. Asuncion, G. R. Nos. 79937-38, February 13, 1989, 170 SCRA 274.
23
Tacay v. Regional Trial Court of Tagum, supra, note 18.

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2. COURT ACQUIRES JURISDICTION OVER THE PARTIES

While the court acquires jurisdiction over the plaintiff by the latter’s voluntary submission to said
jurisdiction with the filing of the complaint, the court acquires jurisdiction over the defendant by his
voluntary submission to said jurisdiction or the service of summons and a copy of the complaint upon
him.

1. Modes of Service of Summons

There are four (4) modes of serving summons:

(a) personal service;

(b) substituted service;

(c) constructive (by publication) service; and

(d) extraterritorial service.

1. Personal Service

Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in
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person, or, if he refuses to receive and sign for it, by tendering it to him. If there are two (2) or more
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defendants, each one of them should be served a copy of the summons and the complaint.

2. Substituted Service

If, for justifiable causes, the defendant cannot personally be served with summons within a
reasonable time, service may be effected:

(1) by leaving copies of the summons at the defendant’s residence with some person of
suitable age and discretion then residing therein, or

(2) by leaving the copies at the defendant’s office or regular place of business with some
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competent person in charge thereof.

In substituted service, it is immaterial that the defendant does not in fact receive actual notice. This
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will not affect the validity of the service.

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There must be strict compliance with the requirements of substituted service. For substituted
service to be valid, the return must show:

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(1) the efforts exerted by the sheriff to effect personal service within a reasonable period of
time; impossibility of service should be shown by stating the efforts made to find the
defendant;

(2) that such personal service cannot be effected for justifiable reasons;

(3) the service of summons was made at the defendant’s residence or office or regular place
of business at the time of the service, the address of the defendant to whom summons was
supposed to have been served must be indicated in the return; and

(4) the service was made with some person of suitable age and discretion residing therein, if
effected at defendant’s residence, or with some competent person in charge thereof, if
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effected at defendant’s office or regular place of business, at the time of the service.

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Impossibility of personal service for justifiable reasons must be shown. Otherwise, the service is
31
invalid. The sheriff’s certification that he duly served summons on a defendant does not
necessarily mean that he validly served the summons. Impossibility of personal service must be
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established either by the return or by evidence to that effect.

2.1 Service on Domestic Private Juridical Entity

Service on an agent of the corporation is not permitted. The designation of persons or officers who
are authorized to accept summons for a domestic corporation is limited and more clearly specified.
The rule states 'general manager' instead of only 'manager,' 'corporate secretary' instead of
'secretary' and 'treasurer' instead of 'cashier.'

Accordingly, the Court ruled that the service of summons upon the Branch Manager of petitioner at
its branch office in Cagayan de Oro City instead of upon the general manager at its principal office in
Davao City is improper. Consequently, the trial court did not acquire jurisdiction over the person of
the petitioner. The Court stressed the purpose of the strict enforcement of the rule on summons by
providing that under Section 20 of Rule 14, the inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary
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appearance. Any proceeding undertaken by the trial court will consequently be null and void.

2.2 Service on foreign private juridical entity may be allowed only if there are well-pleaded
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allegations of having transacted or doing business in the Philippines.

The fact of doing business in the Philippines must be established by appropriate allegations in the
complaint. The court need not go beyond the allegations of the complaint in order to determine
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whether it has jurisdiction. A determination that the foreign corporation is doing business is only
tentative and is made only for the purpose of enabling the local court to acquire jurisdiction over the
foreign corporation through service of summons pursuant to Rule 14, Section 12. Such
determination does not foreclose a contrary finding should evidence later show that it is not

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transacting business in the country.

3. Constructive Service (By Publication)

Service upon defendant whose identity or whereabouts are unknown. — In any action where
the defendant is designated as an unknown owner, or the like, or whenever his whereabouts
are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court,
be effected upon him by publication in a newspaper of general circulation and in such places
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and for such time as the court may order.

When the defendant is a resident of the Philippines, service of summons by publication is allowed in
any action.

4. Extraterritorial Service, When Allowed

Extraterritorial service of summons is allowed where the action is against a non-resident defendant
who is not found in the Philippines and the action:

(1) affects the personal status of plaintiffs;

(2) relates to or subject of which is property in the Philippines (real or personal), in which the
defendant has claim, lien or interest, actual or contingent; or

(3) in which relief demanded consists wholly, or in part, in excluding the defendant from any
interest therein; or

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(4) property of defendant has been attached in the Philippines.

Thus, extraterritorial service of summons is proper only in actions in rem or quasi-in-rem. The
remedy against a non-resident defendant who cannot be served with summons in the Philippines is
to locate real or personal property and attach the property. The action becomes in rem or quasi-in-
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rem in which case, service by publication is permissible. Where, however, the attachment is
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invalid, the service by publication is void. To be effective, extraterritorial service of summons must
be with leave of court and only through any of the following means:

(1) Personal service;

(2) By publication (and copy of the summons and order of the court must be sent by
registered mail to the last known address);

(3) By publication (and copy of summons and order of the court) must be sent by registered
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mail at last known address; Any other manner which the court may deem sufficient.

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Notes: Service of summons on husband is not binding on wife who is a non-resident. However,
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substituted service or extraterritorial service of summons by leave of court on a resident defendant
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who is temporarily outside of the Philippines is valid.

2. Effect of Lack of Summons

The trial court does not acquire jurisdiction and renders null and void all subsequent proceedings
and issuances in the actions from the order of default up to and including the judgment by default
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and the order of execution. However, lack of summons may be waived as when the defendant fails
to make any seasonable objection to the court’s lack of jurisdiction over the person of the
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defendant.

24
Rules of Court, Rule 14, Sec. 6.
25
Bello v. Ubo, No. L-30353, September 30, 1982, 117 SCRA 91.
26
Rules of Court, Rule 14, Sec. 7.
27
Montalban v. Maximo, No. L-22997, March 15, 1968, 22 SCRA 1070.
28
Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, No. L-70661, April 9, 1987, 149 SCRA 194.
29
Rules of Court, Rule 14, Sec. 7.
30
Administrative Circular No. 59.
31
Venturanza v. Court of Appeals, No. L-77760, December 11, 1987, 156 SCRA 305.
32
Keister v. Navarro, No. L-29067, May 31, 1977, 77 SCRA 209, Filmerco Commecial Co., Inc. v. Intermediate
Appellate Court, supra, note 28.
33
E. B. Villarosa & Partner Co., Ltd. v. Benito, G. R. No. 136426, August 4, 1999, 312 SCRA 65.
34
Rules of Court, Rule 14, Sec. 12.
35
Litton Mills, Inc. v. Court of Appeals, G. R. No. 94980, May 15, 1996, 256 SCRA 696; Signetics Corporation v.
Court of Appeals, G. R. No. 105141, August 31, 1993, 225 SCRA 737.
36
Ibid.
37
Rules of Court, Rule 14, Sec. 14.
38
Banco Español-Filipino v. Palanca, 37 Phil 921 [1918]; Perkins v. Dizon, 69 Phil 186 [1939]; Sahagum v. Court of
Appeals, G. R. No. 78328, June 3, 1991, 198 SCRA 44.
39
Filmerco Commercial Co., Inc. v. Intermediate Appellate Court, supra, note 28.
40
Obaña v. Court of Appeals, G. R. No. 87635, April 27, 1989, 172 SCRA 886.
41
Rules of Court, Rule 14, Sec. 17.
42
Valmonte v. Court of Appeals, G. R. No. 108538, January 22, 1996, 252 SCRA 92.
43
Montalban v. Maximo, supra, note 27.
44
Rules of Court, Rule 14, Sec. 16.

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Toyota Cubao, Inc. v. Court of Appeals, G. R. No. 126321, October 23, 1997, 281 SCRA 198.
46
Baticano v. Chu, Jr., L-58036, March 16, 1987, 148 SCRA 541.

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3. INCIDENTS AFTER COURT HAS ACQUIRED JURISDICTION OVER THE PARTIES

1. Preliminary

After the court has acquired jurisdiction over the parties, but before the defendant files his
responsive pleading, the parties may file the following notice, motions and pleadings:

1. Plaintiff

1.1 notice of dismissal of the complaint under Rule 17, Section 1;

1.2 amended complaint under Rule 10, Section 2;

1.3 motion for leave to file a supplemental complaint under Rule 10, Section 6;

1.4 motion for leave of court to take the deposition upon oral examination or written
interrogatories of any person, whether party or not under Rule 23, Section 1;

1.5 motion for leave of court to serve written interrogatories upon defendant under Rule 25,
Section 1;

1.6 motion for production or inspection of documents of things under Rule 27, Section 1;

1.7 motion to declare defendant in default under Rule 9, Section 3.

2. Defendant

2.1 motion to set aside order of default under Rule 9, Section 3;

2.2 motion for extension of time to file responsive pleading under Rule 11, Section 11; and

2.3 motion for bill of particulars under Rule 12.

2.4 notice of dismissal of the complaint under Rule 17, Section 1.

2. Rules on the Specific Incidents

1. Notice of Dismissal of Complaint

A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before service of the answer or of a
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motion for summary judgment.

As a general rule, the dismissal of the complaint under this rule is without prejudice. However, the

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following are the recognized exceptions:

(a) where the notice of dismissal so provides;

(b) where the plaintiff has previously dismissed the same case in a court of competent
jurisdiction;

(c) even where the notice of dismissal does not provide that it is with prejudice but it is
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premised on the fact of payment by the defendant of the claims involved. For the notice of
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dismissal to be effective, there must be an order confirming the dismissal.

2. Amended Complaint

A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case
50
of a reply, at any time within ten (10) days after it is served.

The filing by the defendant of a motion to dismiss does not affect the plaintiff’s right to amend his
complaint without first securing leave of court because a motion to dismiss is not a responsive
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pleading. Leave of court is necessary after the filing of a responsive pleading. However, even
substantial amendments may be made under this Rule. But such leave may be refused, if it appears
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to the court that the motion was made with intent to delay.

3. Supplemental Complaint

Upon motion of a party the court may upon reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the
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pleading sought to be supplemented.

The adverse party may plead thereto within ten (10) days from notice of the order admitting the
54
supplemental pleading. The answer to the complaint shall serve as the answer to the supplemental
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complaint if no new or supplemental answer is filed.

A supplemental pleading incorporates matters arising after the filing of the complaint. A
supplemental pleading is always filed with leave of court. It does not result in the withdrawal of the
original complaint.

4. Deposition (Rule 23)

A deposition is not generally supposed to be a substitute for the actual testimony in open court of a
party or witness. If the witness is available to testify, he should be presented in court to testify. If
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available to testify, a party’s or witness’ deposition is inadmissible in evidence for being hearsay.
The exceptions however to the inadmissibility of such deposition are provided for in Rule 23, Section
4, as follows:

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(a) Any deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of deponent as a witness;

(b) The deposition of a party or of any one who at the time of taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a
party may be used by an adverse party for any purpose;

(c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the
court finds: (1) that the witness is dead; or (2) that the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or hearing, or is out of the Philippines, unless it
appears that his absence was procured by the party offering the deposition; or (3) that the witness is
unable to attend to testify because of age, sickness, infirmity, or imprisonment; or (4) that the party
offering the deposition has been unable to procure the attendance of the witness by subpoena; or (5)
upon application and notice, that such exceptional circumstances exist as to make it desirable, in the
interest of justice and with due regard to the importance of presenting the testimony of witnesses orally
in open court, to allow the deposition to be used; and

(d) If only part of a deposition is offered in evidence by a party, the adverse party may require him to
introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.

5. Written Interrogatories upon Defendant (Rule 25, Section 1)

A judgment by default may be rendered against a party who fails to serve his answer to written
57
interrogatories.

If a party fails to avail of written interrogatories as a mode of discovery, the effect is provided for in
Rule 25, Section 6, to wit:

Unless thereafter allowed by the court for good cause shown and to prevent a failure of
justice, a party not served with written interrogatories may not be compelled by the adverse
party to give testimony in open court, or to give a deposition pending appeal.

6. Request for Admission

At any time after issues have been joined, a party may file and serve upon any other party a
written request for the admission by the latter of the genuineness of any material and relevant
document described in and exhibited with the request or of the truth of any material and relevant
matter of fact set forth in the request. Copies of the documents shall be delivered with the
58
request unless copies have already been furnished.

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a
party who fails to file and serve a request for admission on the adverse party of material and relevant
facts which are, or ought to be within the personal knowledge of the latter, shall not be permitted to
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present evidence on such facts.

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7. Production or Inspection of Document or Things (Rule 27, Section 1)

This mode of discovery does not mean that the person who is required to produce the document or
the thing will be deprived of its possession even temporarily. It is enough that the requesting party be
given the opportunity to inspect or copy or photograph the document or take a look at the thing.

8. Physical and Mental Examination of a Party (Rule 28, Section 1)

In an action in which the mental or physical condition of a party is in controversy, the court in which
the action is pending may, in its discretion, order him to submit to a physical or mental examination
by a physician.

9. Consequences of Refusal (Rule 29)

A trial court has no discretion to determine what the consequences of a party’s refusal to allow or
make discovery should be; it is the law which makes that determination; it is grave abuse of
discretion for the court to refuse to recognize and observe the effects of that refusal as mandated by
60
law.

10. Default (Rule 9, Section 3)

If the defending party fails to answer within the time allowed therefore, the court shall, upon
motion of the claiming party with notice to the defending party, and proof of such failure, declare
the defending party in default. Thereupon, the court shall proceed to render judgment granting
the claimant such relief as his pleading may warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of
61
court.

Another ground to declare a defending party in default is when he fails to furnish a copy of the
62
answer to the claiming party.

A declaration of default cannot be made by the court motu proprio; there must be a motion to that
63
effect. If no motion to declare defendant in default is filed, the complaint should be dismissed for
failure to prosecute.

10.1 Rules on Default

10.1.1 Effect of Order of Default

(a) A party in default loses his standing in court. He cannot appear therein, adduce
64
evidence and be heard nor take part in trial. He cannot file a motion to dismiss
65
without first filing a motion to set aside the order of default. He loses his right to
present evidence, control the proceedings and examine the witnesses or object to

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plaintiff’s evidence.

(b) A motion to declare the defending party in default should be served upon him. A
party in default, however, shall be entitled to notice of subsequent proceedings but
67
not to take part in the trial.

(c) Being declared in default does not constitute a waiver of all rights. What is
waived is only the right to be heard and to present evidence during trial while default
prevails. A party in default is still entitled to notice of final judgments and orders and
68 69
proceedings taken subsequent thereto. He may be cited and testify as a witness.

70
10.1.2 Summary of the Remedies in Default

(a) From notice of the order of default but before judgment, motion to set aside order
of default; and, in a proper case, petition for certiorari under Rule 65.

(b) After judgment but before its finality:

(i) motion for reconsideration under Rule 37, Section 1;

(ii) motion for new trial under Rule 37, Section 1; and

(iii) appeal under Rule 41, Section 1.

(c) After finality of judgment:

Within the prescribed period, petition for relief from judgment under Rule 38, Section
1; in a proper case and within the prescribed period, petition for certiorari under Rule
65; and in a proper case and within the prescribed periods, petition for annulment of
judgment under Rule 47.

10.1.3 Actions where Default is Not Allowed

(a) Action for declaration of the nullity of marriage; action for annulment of marriage;
and, action for legal separation.

Note: If the defending party fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion exists between the parties, and if
there is no collusion, to intervene for the State in order to see to it that the evidence
71
submitted is not fabricated;

(b) Before expiration of period to answer as when there is a pending motion for

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extension;

(c) In actions governed by the Rule on Summary Procedure, a motion to declare


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defendant in default is not allowed.

10.1.4 Two (2) Kinds of Proceedings after Declaration of Default and the Extent of
Relief that may be Granted

(a) Without Hearing

The Court may immediately render judgment granting the claimant such relief as his
pleading may warrant. Such relief however shall not exceed the amount or be
74
different in kind from that prayed for nor award unliquidated damages.

(b) With Hearing

The court may, in its discretion, allow or require the claimant to submit evidence.
Such reception of evidence may be delegated to the Clerk of Court. After the
reception of claimant’s evidence, the court may render judgment granting the reliefs
prayed as established by the evidence. It may also award unliquidated damages
75
without exceeding the amounts prayed for.

11. Extension of Time to file Responsive Pleading (Rule 11)

The granting of a motion to extend the time to plead is addressed to the sound discretion of the
76
court. The court can extend but not shorten the period to plead as fixed by the Rules.

12. Bill of Particulars (Rule 12, Section 1)

Before responding to a pleading, a party may move for a definite statement or for a bill of particulars
of any matter which is not averred with sufficient definiteness or particularity to enable him properly
to prepare his responsive pleading. If the pleading is a reply, the motion must be filed within ten (10)
days from service thereof. Such motion shall point out the defects complained of, the paragraphs
wherein they are contained, and the details desired.

The Court need not wait for the date set for hearing of the motion. Upon the filing of the motion, the
clerk of court must immediately bring it to the attention of the court which may either grant or deny it
77
or hold a hearing therein.

If the order directing the plaintiff to submit a bill of particulars is not complied with, the court may
order the striking out of the pleading or the portion thereof to which the order was directed or make
78
such orders as it deems just.

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13. Motion to Dismiss

1. Grounds (Rule 16, Section 1)

Within the time for but before filing the answer to the complaint or pleading asserting a claim, a
motion to dismiss may be made on any of the following grounds:

(a) That the court has no jurisdiction over the person of the defending party;

(b) That the court has no jurisdiction over the subject matter of the claim;

(c) That venue is improperly laid;

(d) That the plaintiff has no legal capacity to sue;

(e) That there is another action pending between the same parties for the same cause;

(f) That the cause of action is barred by a prior judgment or by the statute of limitations;

(g) That the pleading asserting the claim states no cause of action;

(h) That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or
otherwise extinguished;

(i) That the claim on which the action is founded is unenforceable under the provisions of the Statute of
Frauds; and

(j) That a condition precedent for filing the claim has not been complied with.

It is a decisional rule that in a motion to dismiss on the ground that the complaint states no cause of
action, the movant hypothetically admits the truth of the allegations of the complaint which are
relevant and material to plaintiff’s cause of action. This admission does not include inferences or
conclusions drawn from the alleged facts nor to matters of evidence, surplasage or irrelevant matters
79
nor to allegations of fact the falsity of which is subject to judicial nature.

Formal Requisite: The motion must comply with Rule 15. The court is without authority to act on the
80
motion without proof of service of the notice of hearing.

2. Discussion of Individual Grounds

2.1 Court has no jurisdiction over the person defending party.

81
2.2 Court has no jurisdiction over the subject matter of the claim.

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2.3 Venue is improperly laid.

(a) Venue of an action depends upon the:

a.1 nature of the action;

a.2 residence of the parties;

a.3 stipulation of the parties; and

a.4 law.

(b) Test to Determine Nature of Action

The nature of the action is determined from the allegations of the complaint, the
character of the relief, its purpose and prime objective. When the prime objective is
82
to recover real property, it is a real action.

(c) Rule that Stipulations as to Venue may Either Be Permissive or Mandatory

Written stipulations are either mandatory or permissive. In interpreting stipulations


as to venue, inquiry must be made as to whether or not the agreement is restrictive
in the sense that the suit may be filed only in the place agreed upon or merely
permissive in that the parties may file their suits not only in the place agreed upon
83
but also in the places fixed by the rules.

Qualifying or restrictive words are 'must,' 'only,' and 'exclusively' as cited in


84
Philippine Banking Corporation v. Tensuan, 'solely,' 'in no other court,'
85
'particularly,' nowhere else but except', etc.

(d) Waiver by Failure to File Motion to Dismiss Based on Improper Venue:

86
Improper venue may now be pleaded as an affirmative defense in the answer.
Improper venue may only be deemed waived if it is not pleaded either in a motion to
87
dismiss or in the answer.

2.4 Plaintiff Has No Legal Capacity to Sue

(a) Meaning

Legal capacity to sue means that a party is not suffering from any disability such as
minority, insanity, covertures, lack of juridical personality, incompetence, civil

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88 89
interdiction or does not have the character or representation which he claims or
with respect to foreign corporation, that it is doing business in the Philippines with a
90
license.

(b) Decisional Rules

91
In Pilipinas Shell Petroleum Corporation v. Dumlao, the Supreme Court held that a
person who has no interest in the estate of a deceased person has no legal capacity
to file a petition for letters of administration. With respect to foreign corporations, the
qualifying circumstances of plaintiff’s capacity to sue being an essential element
92
must be affirmatively pleaded. The qualifying circumstance is an essential part of
93
the element of the plaintiff’s capacity to sue. The complaint must either allege that
it is doing business in the Philippines with a license or that it is a foreign corporation
not engaged in business and that it is suing in an isolated transaction.

2.5 Litis Pendentia

(a) Rationale of the Rule: Like res judicata as a doctrine, litis pendentia is a sanction
94
of public policy against multiplicity of suits. The principle upon which a plea of
another action pending is sustained is that the latter action is deemed unnecessary
95
and vexatious.

(b) Requisites of Litis Pendentia: To prevail as a ground for a motion to dismiss, the
following elements must be present:

b.1 Identity of parties, or at least such as representing the same interest in


both actions;

b.2 Identity of rights asserted and prayed for, the relief being founded on the
same facts; and

b.3 The identity on the preceding particulars should be such that any
judgment which may be rendered on the other action will, regardless of
which party is successful, amount to res judicata in the action under
96
consideration.

(c) Which of the Two Cases Should be Dismissed?

The Rules do not require as a ground for dismissal of a complaint that there is a
prior pending action. They provide that there is a pending action, not a pending prior
action. Given, therefore, the pendency of two actions, the following are the relevant
considerations in determining which action should be dismissed:

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c.1 the date of the filing, with preference generally given to the first action
filed to be retained;

c.2 whether the action sought to be dismissed was filed merely to preempt
the later action or to anticipate its filing and lay the basis for its dismissal;
and

c.3 whether the action is the appropriate vehicle for litigating the issues
97
between the parties.

2.6 Res Judicata

(a) Statement of the Doctrine

The doctrine of res judicata is a rule which pervades every well-regulated system of
jurisprudence and is founded upon two grounds embodied in various maxims of the
common law, namely:

a.1 public policy and necessity which make it to the interest of the state that
there should be an end to litigation – interest reipublicae ut sit finis litium,
and

a.2 the hardship on the individual that he should be vexed twice for the
98
same cause – nemo debet bis vexari et eadem causa.

(b) The requisites of res judicata are the following:

b.1 the former judgment or order must be final;

b.2 it must be a judgment or order on the merits;

b.3 the court which rendered it had jurisdiction over the subject matter and
the parties; and

b.4 there must be, between the first and second actions, identity of parties,
99
of subject matter and of cause of action.

(c) Two Aspects of Res Judicata

c.1 Bar by Former Judgment – when, between the first case where the
judgment was rendered, and the second case where the judgment is
invoked, there is identity of parties, subject matter and cause of action.

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c.2 Conclusiveness of Judgment – when there is an identity of parties but


not cause of action, the judgment being conclusive in the second case only
as to those matters actually and directly controverted and determined, and
100
not as to matters invoked thereon.

(d) Decisional Rules

A judicial compromise has the effect of res judicata and is immediately executory
101
and not appealable. The ultimate test in ascertaining the identity of causes of
action is said to be to look into whether or not the same evidence fully supports and
102
establishes both the present cause of action and the former cause of action. Only
103
substantial, and not absolute, identity of parties is required for res judicata.

2.6 Statute of Limitation (Prescription of Action)

An action prescribes by the lapse of time fixed in the Civil Code (Articles 1139 to 1155).

ART. 1139. Actions prescribe by the mere lapse of time fixed by law.

ART. 1140. Actions to recover movables shall prescribe eight years from the time the
possession thereof is lost, unless the possessor has acquired the ownership by
prescription for a less period, according to article 1132, and without prejudice to the
provisions of articles 559, 1505, and 1133.

ART. 1141. Real actions over immovables prescribe after thirty years.

This provision is without prejudice to what is established for the acquisition of


ownership and other real rights by prescription.

ART 1142. A mortgage action prescribes after ten years.

ART 1143. The following rights, among others specified elsewhere in this Code, are not
extinguished by prescription:

1. To demand a right of way, regulated in article 649;

2. To bring an action to abate a public or private nuisance.

ART. 1144. The following actions must be brought within ten years from the time the
right of action accrues:

1. Upon a written contract;

2. Upon an obligation created by law;

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3. Upon a judgment.

ART. 1145. The following actions must be commenced within six years:

1. Upon an oral contract;

2. Upon a quasi-contract.

ART. 1146. The following actions must be instituted within four years:

1. Upon an injury to the rights of the plaintiff;

2. Upon quasi-delict.

However, when the action arises from or out of any act, activity, or conduct of any
public officer involving the exercise of powers or authority arising from Martial Law
including the arrest, detention and/or trial of the plaintiff, the same must be brought
104
within one (1) year.

Art. 1147. The following actions must be filed within one year:

1. For forcible entry and detainer;

2. For defamation.

ART. 1148. The limitations of action mentioned in articles 1140 to 1142, and 1144 to
1147 are without prejudice to those specified in other parts of this Code, in the Code of
Commerce and in special laws.

ART. 1149. All other actions whose periods are not fixed in this Code or in other laws
must be brought within five years from the time the right of action accrues.

ART. 1150. The time for prescription for all kinds of actions, when there is no special
provision which ordains otherwise, shall be counted from the day they may be brought.

ART. 1151. The time for the prescription of actions which have for their object the
enforcement of obligations to pay principal with interest or annuity runs from the last
payment of the annuity or of the interest.

ART. 1152. The period for prescription of actions to demand the fulfillment of obligation
declared by a judgment commences from the time the judgment became final.

ART. 1153. The period for prescription of actions to demand accounting runs from the
day the persons who should render the same cease in their functions.

The period for the action arising from the result of the accounting runs from the date

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when said result was recognized by agreement of the interested parties.

ART. 1154. The period during which the obligee was prevented by a fortuitous event
from enforcing his right is not reckoned against him.

ART. 1155. The prescription of actions is interrupted when they are filed before the
court, when there is a written extrajudicial demand by the creditors, and when there is
any written acknowledgment of the debt by the debtor.

(a) Decisional Rules

105
Prescription and estoppel cannot be invoked against the State. If the defense of
prescription has not been raised in a motion to dismiss or an answer, if the plaintiff’s
complaint or evidence shows that the action had prescribed, the action shall be
106
dismissed. Prescription cannot be invoked as a ground if the contract is alleged
107
to be void ab initio but where prescription depends on whether the contract is
108
void or voidable, there must be a hearing.

2.7 Pleading Asserting Claim States No Cause of Action

(a) Elements of a Cause of Action

A cause of action exists if the following elements are present, namely:

a.1 a right in favor of the plaintiff by whatever means and under whatever
law it arises or is created;

a.2 an obligation on the part of the named defendant to respect or not to


violate such right; and

a.3 an act or omission on the part of such defendant violative of the right of
the plaintiff or constituting a breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an action for recovery of
109
damages.

(b) Hypothetical Admission of Allegations of Fact in the Complaint

It is axiomatic that a defendant moving to dismiss a complaint on this ground is


regarded as having admitted all the averments thereof, at least hypothetically, the
test of the sufficiency of the facts found in a petition, as constituting a cause of
action, being whether or not, admitting the facts alleged, the court could render a
valid judgment upon the same in accordance with the prayer thereof. In determining
the sufficiency of the statements in the complaint as setting forth a cause of action,
only those statements in the complaint, to repeat, may properly be considered, and

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it is error for the Court to take cognizance of external facts, or hold a preliminary
110
hearing to determine their existence.

(c) The following Allegations are not Deemed Hypothetically Admitted:

c.1 allegations of which the court will take judicial notice are not true; neither
allegations of conclusions nor allegations of fact the falsity of which the
111
court may take judicial notice are deemed admitted;

c.2 legally impossible facts;

c.3 facts inadmissible in evidence; and

c.4 facts which appear by record or document included in the pleadings to


112
be unfounded;

c.5 When other facts may be considered;

c.6 Where the motion to dismiss was heard with the submission of evidence
or if documentary evidence admitted by stipulation discloses facts sufficient
113
to defeat the claim or admitted during hearing on preliminary
114
injunction, the facts therein adduced may be considered;

c.7 All documents attached to a complaint, the due execution and


genuineness of which are not denied under oath by the defendant, must be
considered as part of the complaint without need of introducing evidence
115
thereon;

c.8 In resolving a motion to dismiss, every court must take cognizance of


decisions the Supreme Court has rendered because they are proper
subjects of mandatory judicial notice as provided by Section 1 of Rule 129
of the Rules of Court. The said decisions, more importantly, 'form part of the
legal system,' and failure of any court to apply them shall constitute an
abdication of its duty to resolve a dispute in accordance with law, and shall
116
be a ground for administrative action against an inferior court magistrate;

c.9 Exhaustion of Administrative Remedies. Where plaintiff has not


exhausted all administrative remedies, the complaint not having alleged the
fact of such exhaustion, the same may be dismissed for lack of cause of
117
action.

(d) Claim or Demand Set Forth in the Plaintiff’s Pleading Has Been Paid, Waived,

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Abandoned or Otherwise Extinguished

ART. 1231. Obligations are extinguished:

(i) by payment or performance;

(ii) by the loss of the thing due;

(iii) by the condonation or remission of the debt;

(iv) by the confusion or merger of rights of debtor and creditor;

(v) by compensation; and

(vi) by novation.

Other causes of extinguishment of obligations, such as annulment, rescission, fulfillment of a


resolutory condition, and prescription, are governed elsewhere in this Code.

(e) Statute of Frauds

(f) The Civil Code enumerates in Art. 1403 the contracts falling under the Statute of
Frauds.

ART. 1403. The following contracts are unenforceable, unless they are ratified:

1. Those entered into in the name of another person by one who has been given no authority
or legal representation, or who has acted beyond his powers;

2. Those that do not comply with the Statute of Frauds as set forth in this number. In the
following cases, an agreement hereafter made shall be unenforceable by action, unless the
same, or some note or memorandum thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot be received without
the writing, or secondary evidence of its contents:

a. An agreement that by its terms is not to be performed within a year from the
making thereof;

b. An agreement for the sale of goods, chattels or things in action, at a price not less
than five hundred pesos, unless the buyer accept and receive part of such goods
and chattels, or the evidences, or some of them, of such things in action, or pay at
the time some part of the purchase money; but when a sale is made by auction and
entry is made by the auctioneer in his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale, price, names of the purchasers and
person on whose account the sale is made, it is a sufficient memorandum;

c. An agreement for the leasing for a longer period than one year, or for the sale of

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real property or of an interest therein;

d. A representation as to the credit of a third person.

3. Those where both parties are incapable of giving consent to a contract.

(g) Some Decisional Rules

Absence of compliance with the Statute of Frauds may be proved in a motion to


118
dismiss. Plaintiff must produce all notes or memorandum during the hearing of
the motion to dismiss. A motion invoking the Statute of Frauds may be filed even if
the same does not appear on the face of the complaint. That the claim is
unenforceable under the Statute of Frauds may be shown and determined during
119
the hearing of the motion to dismiss on said ground. Under Sec. 2, Chapter 6 of
RA 8792 (E-Commerce Law) where the law requires a writing or document, that
requirement is met by an electronic document which maintains its integrity and
reliability and can be authenticated so as to be useable for subsequent reference.

The Civil Code on cases where compromise is not allowed:

Art. 2035. No compromise upon the following questions shall be valid:

(1) The civil status of persons;

(2) The validity of a marriage or a legal separation;

(3) Any ground for legal separation;

(4) Future support;

(5) The jurisdiction of courts;

(6) Future legitime.

3. Resolution of the Motion

After the hearing, the court may dismiss the action or claim, deny the motion, or order the
amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable.

120
In every case, the resolution shall state clearly and distinctly the reasons therefor.

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47
Rules of Court, Rule 17, Sec. 1.
48
Serrano v. Cabrera, 93 Phil 774 [1953].
49
Rules of Court, Rule 17, Sec. 1; Minute Resolution, Gordon v. Payumo, G. R. No. 134071, July 7, 1998.
50
Rules of Court, Rule 10, Sec. 2.
51
Paeste v. Jarique, 94 Phil 179 [1953].
52
Rules of Court, Rule 10, Sec. 3.
53
Rules of Court, Rule 11, Sec. 7.
54
Ibid.
55
Ibid.
56
Dasmariñas Garments, Inc. v. Reyes, G. R. No. 108229, August 24, 1993, 225 SCRA 622.
57
Rules of Court, Rule 29, Sec. 3 (3).
58
Rules of Court, Rule 26, Sec. 1.
59
Ibid, Sec. 5.
60
Diman v. Alimbres G. R. No. 131466 November 27, 1998, 299 SCRA 459.
61
Rules of Court, Rule 9.
62
Gonzalez v. Francisco, 49 Phil 747 [1926]; Ramirez v. Court of Appeals, G. R. No. 76366, July 3, 1990, 187
SCRA 153.
63
The Philippine British Co., Inc. v. De los Angeles, Nos. L-33720-1, March 10, 1975, 63 SCRA 50.
64
Cavili v. Florendo, No. L-73039, October 9, 1987, 154 SCRA 610.
65
Santos v. Samson, No. L-46371, December 14, 1981, 110 SCRA 215.
66
Cavili v. Florendo, supra, note 64.
67
Rules of Court, Rule 9, Sec. 3(a).
68
Garcia v. Court of Appeals, G. R. No. 83929, June 11, 1992, 209 SCRA 732.
69
Cavili v. Florendo, supra, note 64.
70
Rules of Court, Rule 9, Sec. 3 (b), Lina v. Court of Appeals, No. L-63397, April 9, 1985, 135 SCRA 637; Circle
Financing Corporation v. Court of Appeals, G. R. No. 77315, April 22, 1991, 196 SCRA 166; Malanyaon v. Suñga,
G. R. No. 49463, May 7, 1992, 208 SCRA 436; Omico Mining and Industrial Corporation v. Vallejos, No. L-38974,
March 25, 1975, 63 SCRA 285; Matute v. Court of Appeals, L-26571, January 31, 1969, 26 SCRA 768; Akut v.
Court of Appeals, G. R. No. L-45472, August 30, 1982, 116 SCRA 213.
71
Rules of Court, Rule 9, Sec. 3 (e).
72
Joesteel Container Corporation v. Commonwealth Financing Corporation, No. L-25778, September 30, 1982, 117
SCRA 43; Denso (Phils.), Inc. v. Intermediate Appellate Court, No. L-75000, February 27, 1987, 148 SCRA 280;
Continental Cement Corporation v. Court of Appeals, G. R. No. 88586, April 27, 1990, 184 SCRA 728.
73
Rules of Court, Rule 70, Secs. 13 and 19.
74
Rules of Court, Rule 9, Sec. 3 (d).
75
Rules of Court, Rule 9, Sec. 3 (d).

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76
Naga Development Corporation v. Court of Appeals, G. R. No. 28173, September 30, 1971, 41 SCRA 105.
77
Rules of Court, Rule 12, Sec. 2.
78
Ibid., Sec. 4.
79
De Dios v. Bristol Laboratories (Phil.), Inc., G. R. No. 25530, January 29, 1974, 55 SCRA 349.
80
Rules of Court, Rule 15, Sec. 6.
81
Ibid.
82
Fortune Motors, Inc. v. Court of Appeals, G. R. No. 76431, October 19, 1989, 178 SCRA 564.
83
Rules of Court, Rule 4, Sec. 4 (b), Polytrade v. Blanco, No. L-27033, October 31, 1969, 30 SCRA 187;
Unimasters Conglomeration, Inc. v. Court of Appeals, G. R. No. 119657, February 7, 1997, 267 SCRA 759.
84
G. R. No. 106920, December 10, 1993, 228 SCRA 385; Bautista v. Borja, G. R. No. 20600, October 28, 1966, 18
SCRA 474.
85
Unimasters Conglomeration, Inc. v. Court of Appeals, supra, note 83.
86
Rules of Court, Rule 1, Sec. 6.
87
Rules of Court, Rule 9, Sec. 1.
88
Calano v. Cruz, 91 Phil. 247 [1952].
89
1 Moran 174-177 [1979].
90
Corporation Code, Sec. 133.
91
G.R. No. 44888, February 7, 1992, 206 SCRA 40.
92
Leviton Industries v. Salvadro, No. L-40163, June 19, 1982, 114 SCRA 420.
93
Bulakhidas v. Navarro, No. L-49695, April 7, 1986, 142 SCRA 4; Antam Consolidated, Inc. v. Court of Appeals,
No. L-61523, July 31, 1986, 143 SCRA 288.
94
Investors’ Finance Corporation v. Ebarle, No. L-70640, June 29, 1988, 163 SCRA 60.
95
Victronics Computers, Inc. v. Logarta, G. R. No. 104019, January 25, 1993, 217 SCRA 517; Arceo v. Oliveros,
No. L-38257, January 31, 1985, 134 SCRA 308; Andresons Groups, Inc. v. Court of Appeals, G. R. No. 114928,
January 21, 1997, 266 SCRA 423.
96
Lamin Ents. v. Lagamon, No. L-57250, October 30, 1981, 108 SCRA 740; FEU-Dr. Nicanor Reyes Medical
Foundation v. Trajano, No. L-76273, July 31, 1987, 152 SCRA 725; Suntay v. Aquiluz, G. R. No. L-28883, June 3,
1992, 209 SCRA 500; Valencia v. Court of Appeals, G. R. No. 111401, October 17, 1996, 263 SCRA 275;
Cokaliong Shipping Lines, Inc. v. Amin, G. R. No. 112233, July 31, 1996, 260 SCRA 122.
97
Allied Banking Corporation v. Court of Appeals, G. R. No. 95223, July 26, 1996, 259 SCRA 371.
98
Linzag v. Court of Appeals, G. R. No. 122181, June 26, 1998, 291 SCRA 304.
99
Casil v. Court of Appeals, G. R. No. 121534, January 28, 1998, 285 SCRA 204.
100
Islamic Directorate of the Philippines v. Court of Appeals, G. R. No. 117897, May 14, 1997, 272 SCRA 454.
101
Republic v. Court of Appeals, G. R. No. 110020, September 25, 1998, 296 SCRA 171.
102
Bachrach Corporation v. Court of Appeals, G. R. No. 128349, September 25, 1998, 296 SCRA 487.
103
Sempio v. Court of Appeals, G. R. No. 124326, January 22, 1998, 284 SCRA 580.
104
As amended by PD No. 1755, December 24, 1980.

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105
Delos Reyes v. Court of Appeals, G. R. No. 121468, January 27, 1998, 285 SCRA 81.
106
Rules of Court, Rule 9, Sec. 1; Ferrer v. Ericta, No- L-41767, August 23, 1978, 84 SCRA 705; Aznar v. Bernad,
No. L-81190, May 9, 1988, 161 SCRA 276.
107
Ruiz v. Court of Appeals, No. L-29213, October 21, 1977, 79 SCRA 525; Castillo v. Heirs of Vicente Madrigal,
G. R. No. 62650, June 27, 1991, 198 SCRA 556.
108
Landayan v. Bacani, No. L-30455, September 30, 1982, 117 SCRA 117.
109
Dulay v. Court of Appeals, G. R. No. 108017, April 3, 1995, 243 SCRA 220 cited in Parañaque Kings
Enterprises, Inc. v. Court of Appeals, G. R. No. 11538, February 16, 1997.
110
D. C. Crystal, Inc. v. Laya, G.R. No. 53597, February 28, 1989, 170 SCRA 734; Del Bros. v. Court of Appeals,
G. R. No. 87678, June 16, 1992, 210 SCRA 33; Rava Development Corporation v. Court of Appeals, G. R. No.
96825, July 3, 1992, 211 SCRA 144; Merill Lynch Futures, Inc. v. Court of Appeals, G. R. No. 97816, July 24, 1992,
211 SCRA 824.
111
Mathay v. Consolidated Bank and Trust Company, No. L-23136, August 26, 1974, 58 SCRA 560; U. Bañez
Electric Light Company v. Abra Electric Cooperative, Inc., No. L-59480, December 8, 1982, 119 SCRA 90;
Dalandan v. Julio, No. L-19101, February 29, 1964, 10 SCRA 400; Marcopper Mining Corporation v. Garcia, No. L-
55935, July 30, 1986, 143 SCRA 178.
112
Tan v. Director of Forestry, No. L-24548, October 27, 1983, 125 SCRA 302.
113
Ibid.
114
Santiago v. Pioneer Savings and Loan Bank, G. R. No. 77502, January 15, 1988, 157 SCRA 100.
115
Asia Banking Corporation v. Walter E. Olsen and Co., 48 Phil. 529 [1925].
116
Peltan Development, Inc. v. Court of Appeals, G. R. No. 117029, March 29, 1997, 270 SCRA 82.
117
Pineda v. Court of First Instance of Davao, 111 Phil. 643 [1961]
118
Yuvienco v. Dacuycuy, No. L-55048, May 27, 1981, 104 SCRA 668.
119
Ibid.
120
Rules of Court, Rule 16, Sec. 3.

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Civil Procedure

4. JOINDER OF ISSUES

1. Filing of Answer

1. Time to Plead

1.1 Answer to Complaint and Third-Party (Fourth-Party, etc.) Complaint – fifteen (15) days after
121
service of summons, unless a different period is fixed by the court.

However, under Rule 16, Section 4, if a motion to dismiss is denied, the movant shall file his
answer within the balance of the period provided by Rule 11 to which he was entitled at the
time of serving his motion, but not less than five (5) days in any event, computed from his
receipt of the notice of the denial. If the pleading is ordered to be amended, he shall file his
answer within the period prescribed by Rule 11 counted from service of the amended pleading,
unless the court provides a longer period.

1.2 Answer of a defendant foreign private juridical entity

1.2.1 when summons is served upon a resident agent – fifteen (15) days
122
after service of summons.

1.2.2 when summons is served on the government official designated to


receive the same – thirty (30) days from receipt by the latter of the
123
summons.

1.3 Answer to Amended Complaint, Amended Counterclaim, Amended Cross-claim and


Amended Third-Party (Fourth-Party, etc.) Complaint:

1.3.1 amended complaint was filed as a matter of right (Rule 10, Section 2)
124
– fifteen (15) days after being served with a copy thereof; and

1.3.2 amended complaint was filed with leave of court (Rule 10, Section 3) –
125
ten (10) days from notice of order admitting the amended complaint.

126
1.4 Answer to counterclaim or cross-claim - within ten (10) days from service.

127
1.5 Reply - within ten (10) days from service of the pleading responded to.

1.6 Answer to supplemental complaint - within ten (10) days from notice of the order
128
admitting the same, unless a different period is fixed by the court.

1.7 Answer to Complaint-in-Intervention - within fifteen (15) days from notice of the order

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129
admitting the same unless a different period is fixed by the court.

2. Strict Observance of the Period

While the rules are liberally construed, the provisions on reglementary periods are strictly
applied for they are deemed indispensable to the prevention of needless delays and
130
necessary to the orderly and speedy discharge of judicial business.

131
Strict compliance with said periods is mandatory and imperative.

3. Effect of Failure to Plead (Rule 9)

Sec. 1. Defenses and objections not pleaded.–Defenses and objections not pleaded
either in a motion to dismiss or in the answer are deemed waived. However, when it
appears from the pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between the same parties
for the same cause, or that the action is barred by a prior judgment or by Statute of
Limitations, the court shall dismiss the claim.

2. Counterclaim

1. Definition

132
A counterclaim is any claim which a defending party may have against an opposing party.

There are two (2) kinds, the compulsory and the permissive. A compulsory counterclaim is one
which, being cognizable by the regular courts of justice, arises out of or is connected with the
transaction or occurrence constituting the subject matter of the opposing party’s claim and does not
require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature
thereof, except that in an original action before the Regional Trial Court, the counterclaim may be
133
considered compulsory regardless of the amount.

A counterclaim which is not compulsory is a permissive counterclaim.

2. Difference Between Permissive and Compulsory Counterclaim

In a permissive counterclaim, the docket and other lawful fees should be paid and the same should
be accompanied by a certificate against forum shopping and certificate to file action issued by the
proper Lupon Tagapamayapa. It should also be answered by the claiming party. It is not barred even
if not set up in the action.

In a compulsory counterclaim, no docket fee is paid and the certificates mentioned above are not

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134 135
required. If it is not raised in the answer, it shall be barred.

A compulsory counterclaim that merely reiterates special defenses which are deemed controverted
even without a reply, or raises issues which are deemed automatically joined by the allegations of
136
the complaint need not be answered. However, a compulsory counterclaim which raises issues
137
not covered by the complaint should be answered.

If the counterclaim is based on an actionable document attached to or copied in the counterclaim,


the genuineness and due execution of the instrument shall be deemed admitted unless the adverse
138
party specifically denies under oath its genuineness and due execution.

3. Cognate Rules

139
3.1 A cross-claim which is not set up in the action is barred.

3.2 The dismissal of the complaint carries with it the dismissal of the cross-claim which is
140
purely defensive, but not a cross-claim seeking affirmative relief. It does not also carry
with it a dismissal of the counterclaim that has been pleaded by the defendant prior to
141
service to him of the notice of dismissal, or to a dismissal due to the fault of the
142
plaintiff.

3.3 A party cannot, in his reply, amend his cause of action nor introduce therein new or
143
additional causes of action.

3.4 A third-party complaint need not arise out of or be entirely dependent on the main action
as it suffices that the former be only "in respect" of the claim of the third-party plaintiff’s
144
opponent.

121
Rules of Court, Rule 11, Secs. 1 and 5.
122
Rules of Court, Rule 14, Sec. 12.
123
Rules of Court, Rule 11, Sec. 2.
124
Rules of Court, Rule 11, Sec. 3.
125
Ibid.
126
Rules of Court, Rule 11, Sec. 4.
127
Ibid., Sec. 6.
128
Ibid., Sec. 7.
129
Rules of Court, Rule 19, Sec. 7.

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130
Alvero v. De La Rosa, 76 Phil. 428 [1946]; Valdez v. Ocumen, 106 Phil. 929 [1960]; Mangali v. Court of
Appeals, L-47296, August 21, 1980, 99 SCRA 236; Legaspi-Santos v. Court of Appeals, G. R. No. 60577, October
11, 1983, 125 SCRA 22.
131
FJR Garments Industries v. Court of Appeals, L-49320, June 29, 1984, 130 SCRA 216.
132
Rules of Court, Rule 6, Sec. 6.
133
Ibid., Sec. 7.
134
Santo Tomas University v. Surla, G. R. No. 129718, August 17, 1998, 294 SCRA 382.
135
Rules of Court, Rule 9, Sec. 2.
136
Lama v. Apacible 79 Phil. 68 [1947]; Navarro v. Bello, 102 Phil. 1019 [1958]; Gojo v Goyala, G. R. No. 26768,
October 30, 1970, 35 SCRA 557.
137
Feria, Annotated 1997 Rules of Court, 41.
138
Rules of Court, Rule 8, Sec. 8.
139
Rules of Court, Rule 9, Sec. 2.
140
Torres v. Court of Appeals, L-25889, January 12, 1973, 49 SCRA 67.
141
Rules of Court, Rule 17, Sec. 2.
142
Ibid., Sec. 3.
143
Anaya v. Palaroan, L-27930, November 26, 1970, 36 SCRA 97.
144
Pascual v. Bautista, L-21644, May 29, 1970, 33 SCRA 301.

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Civil Procedure

5. PRE-TRIAL

1. Concept of Pre-Trial

1. Concept of Pre-Trial

Pre-trial is a procedural device by which the Court is called upon after the filing of the last
pleading, to compel the parties and their lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a formal statement and embody in a single
document the issues of fact and law involved in the action, and such other matters as may
aid in the prompt disposition of the action, such as the number of witnesses the parties
intend to present, the tenor or character of their testimonies, their documentary evidence,
the nature and purpose of each of them, and the number of trial dates that each will need to
put on his case. One of the objectives of pre-trial procedure is to take the trial of cases out of
145
the realm of surprise and maneuvering. Pre-trial also lays down the foundation and
146
structural framework of another concept, that is the continuous trial system.

147
Pre-trial is mandatory but not jurisdictional.

2. Purpose of Pre-Trial

The purpose of the pre-trial is for the court to consider:

(a) the possibility of an amicable settlement or of a submission to alternative


modes of dispute resolution;

(b) the simplification of the issues;

(c) the necessity or desirability of amendments to the pleadings;

(d) the possibility of obtaining stipulations or admissions of facts and of


documents to avoid unnecessary proof;

(e) the limitation of the number of witnesses;

(f) the advisability of a preliminary reference of issues to a commissioner;

(g) the propriety of rendering judgment on the pleadings, or summary


judgment, or of dismissing the action should a valid ground therefore be found
to exist.

(h) the advisability or necessity of suspending the proceedings; and

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(i) such other matters as may aid in the prompt disposition of the action.

3. Administrative Circular No. 3-99 (January 15, 1999) on Pre-Trial

A. Pre-Trial

1. Within five (5) days after the last pleading joining the issues has been filed and
served, the plaintiff must move ex parte that the case be set for pre-trial conference.

2. The parties shall submit, at least three (3) days before the conference, pre-trial
briefs containing the following:

a. A statement of their willingness to enter into an amicable settlement


indicating the desired terms thereof, or to submit the case to any of the
alternative modes of dispute resolution;

b. A summary of admitted facts and proposed stipulation of facts;

c. The issues to be tried or resolved;

d. The number and names of the witnesses to be presented, and abstract of


their testimonies, and the approximate number of hours that will be required
by the parties for the presentation of their respective evidence;

e. Copies of all documents intended to be presented with a statement of the


purposes of their offer;

f. A manifestation of their having availed or their intention to avail


themselves of any discovery procedure, or of the need of referral of any
issues to commissioners;

g. Applicable laws and jurisprudence;

h. The available trial dates of counsel for complete presentation of evidence,


which must be within a period of three months from the first day of trial.

3. Before the pre-trial conference, the judge must study the pleadings of every case,
and determine the issues thereof and the respective positions of the parties thereon
to enable him to intelligently steer the parties toward a possible amicable settlement
of the case, or, at the very least, to help reduce and limit the issues.

The judge should avoid the undesirable practice of terminating the pre-trial as soon
as the parties have indicated that they cannot settle the controversy. He must be
mindful that there are other important aspects of the pre-trial that ought to be taken

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up to expedite the disposition of the case.

4. At the pre-trial conference, the following shall be done:

a. The judge with all tact, patience and impartiality shall endeavor to
persuade the parties to arrive at a settlement of the dispute; if no amicable
settlement is reached, then he must effectively direct the parties toward the
achievement of the other objectives or goals of pre-trial set forth in Section
2, Rule 18, 1997 Rules of Civil Procedure.

b. If warranted by the disclosures at the pre-trial, the judge may either


forthwith dismiss the action, or determine the propriety of rendering a
judgment on the pleadings or a summary judgment.

c. The judge shall define the factual issues arising from the pleadings and
endeavor to cull the material issues.

d. If only legal issues are presented, the judge shall require the parties to
submit their respective memoranda and thereafter render judgment.

e. If trial is necessary, the judge shall fix the trial dates required to complete
presentation of evidence by both parties within ninety (90) days from the
date of initial hearing.

5. After the pre-trial conference, the judge should not fail to prepare and issue the
requisite pre-trial order, which shall embody the matters mentioned in Section 7,
Rule 18 of the 1997 Rules of Civil Procedure.

6. Failure of the plaintiff to appear at the pre-trial shall be a cause for dismissal of
the action. A similar failure of the defendant shall be a cause to allow the plaintiff to
present his evidence ex-parte and the court to render judgment on the basis thereof.

7. Failure to file pre-trial briefs shall have the same effect as failure to appear at the
pre-trial.

149
The judge should encourage the effective use of pre-trial discovery procedures.

4. The Pre-Trial Order

Where the case proceeded to trial with the petitioners actively participating therein without
150
raising their objections to the pre-trial, they are bound by the stipulations at the pre-trial.

Pre-trial is primarily intended to make certain that all issues necessary to the disposition of a
case are properly raised, and the determination of issues at a pre-trial conference bars the

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151
consideration of other questions on appeal.

4.1 Exceptions

152
4.1.1 To prevent manifest injustice;

4.1.2 Issues that are impliedly included or necessarily connected to the


153
expressly defined issues and denser parts of the pre-trial order.

4.1.3 Issues not included in the pre-trial order but were tried expressly or
154
impliedly by the parties.

145
Permanent Concrete Products, Inc. v. Teodoro, G. R. No. 29776, November 29, 1968, 26 SCRA 332.
146
Circular No. 1-89; Administrative Circular No. 4, September 4, 1988.
147
Martinez v. de la Merced, G. R. No. 82309, June 20, 1989, 174 SCRA 182.
148
Rules of Court, Rule 18, Sec. 2.
149
Administrative Circular No. 1 dated 28 January 1988.
150
Macaraeg v. Court of Appeals, G. R. No. 48008, January 20, 1989, 169 SCRA 259 citing Lucenta v. Court of
First Instance of Bukidnon, G. R. No. L-39789, June 20, 1988, 162 SCRA 197.
151
Son v. Son, G. R. No. 73077, December 29, 1996, 251 SCRA 556.
152
Sese v. Intermediate Appellate Court, No. L-66186, July 31, 1987, 152 SCRA 585.
153
Velasco v. Apostol, G. R. No. 44588, May 9, 1989, 173 SCRA 228 cited in Son v. Son, supra, note 151.
154
Son v. Son, supra, note 151.

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Civil Procedure

6. TRIAL (Rule 30)

A. Administrative Circular No. 3-99, Jan. 15, 1999

To insure speedy disposition of cases, the following guidelines must be faithfully observed:

I. The session hours of all Regional Trial Courts, Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts shall be from 8:30
A. M. to noon and from 2:00 P. M. to 4:30 P. M. from Monday to Friday. The hours in the
morning shall be devoted to the conduct of trial, while the hours in the afternoon shall be
utilized for (1) the conduct of pre-trial conferences; (2) writing of decisions, resolutions, or
orders; or (3) the continuation of trial on the merits, whenever rendered necessary, as may
be required by the Rules of Court, statutes, or circulars in specified cases.

However, in multi-sala courts in places where there are few practicing lawyers, the schedule
may be modified upon request of the Integrated Bar of the Philippines such that one-half of
the branches may hold their trial in the morning and the other half in the afternoon.

Except those requiring immediate action, all motions should be scheduled for hearing on
Friday afternoons, or if Friday is a non-working day, in the afternoon of the next business
day. The unauthorized practice of some judges of entertaining motions or setting them for
hearing on any other day or time must be immediately stopped.

II. Judges must be punctual at all times.

III. The Clerk of Court, under the direct supervision of the Judge, must comply with Rule 20
of the 1997 Rules of Civil Procedure regarding the calendar of cases.

IV. There should be strict adherence to the policy on avoiding postponements and needless
delay.

Sections 2, 3 and 4 of Rule 30, 1997 Rules on Civil Procedure on adjournments and
postponements and on the requisites of a motion to postpone trial for absence of evidence
or for illness of a party or counsel should be faithfully observed.

Lawyers as officers of the court, are enjoined to cooperate with judges to ensure swift
disposition of cases.

V. The mandatory continuous trial system in civil cases contemplated in Administrative


Circular No. 4 dated 22 September 1988, and the guidelines provided for in Circular No. 1-
89, dated 19 January 1989, must be effectively implemented. For expediency, these
guidelines in civil cases are hereunder restated with modifications, taking into account the
relevant provisions of the 1997 Rules of Civil Procedure:

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B. Trial

1. Unless the docket of the court requires otherwise, not more than four (4) cases
shall be scheduled for trial daily.

2. The Presiding Judge shall make arrangements with the prosecutor and the Public
Attorney’s Office (PAO) so that a relief prosecutor and a PAO attorney are always
available in case the regular prosecutor or PAO attorneys are absent.

3. Contingency measures must likewise be taken for any unexpected absence of the
stenographer and other support staff assisting in the trial.

4. The issuance and service of subpoena shall be done in accordance with


Administrative Circular No. 4 dated 22 September 1988.

5. The judge shall conduct trial with utmost dispatch, with judicious exercise of the
court’s power to control trial proceedings to avoid delay.

6. The judge must take notes of the material and relevant testimonies of witnesses
to facilitate his decision-making.

7. The trial shall be terminated within ninety (90) days from initial hearing.
Appropriate disciplinary sanctions may be imposed on the judge and the lawyers for
failure to comply with the requirement due to causes attributable to them.

8. Each party is bound to complete the presentation of his evidence within the trial
dates assigned to him. After the lapse of said dates, the party is deemed to have
completed the presentation of evidence. However, upon verified motion based on
compelling reasons, the judge may allow a party additional trial dates in the
afternoon; provided that said extension will not go beyond the three-month limit
computed from the first trial date except when authorized in writing by the Court
Administrator, Supreme Court.

I. All trial judges must strictly comply with Circular No. 38-98, entitled 'Implementing the
Provisions of Republic Act No. 8493' ('An Act to Ensure a Speedy Trial of All Cases Before
the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, and Municipal Circuit Trial Court, Appropriating Funds
Therefore, and for Other Purposes') issued by the Honorable Chief Justice Andres R.
Narvasa on 15 September 1998.

II.

1. As a constant reminder of what cases must be decided or resolved, the judge


must keep a calendar of cases submitted for decision, noting therein the exact day,
month and year when the 90-day period is to expire. As soon as a case is submitted

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Civil Procedure

for decision, it must be noted in the calendar of the judge; moreover, the records
shall be duly collated with the exhibits and transcripts of stenographic notes, as well
as the trial notes of the judge, and placed in the judge’s chamber.

2. In criminal cases, the judge will do well to announce in open court at the
termination of the trial the date of the promulgation of the decision, which should be
set within 90 days from the submission of the case for decision.

3. All Judges must scrupulously observe the period prescribed in Section 15, Article
VIII of the Constitution.

This Circular shall take effect on February 1,1999, and the Office of the Court Administrator
shall ensure faithful compliance therewith.

City of Manila, 15 January 1999.

2. Some Rules

1. The order of trial stated above is followed in ordinarily contested cases. However, if the defendant
in his answer admits the obligation alleged in the complaint but raises special defenses, then the
plaintiff is relieved of the duty to present evidence in chief and so the defendant should start the
155
proceeding by presenting his evidence to support his special defenses.

2. When Case Deemed Submitted for Decision in Trial Court

Under Administrative Circular No. 28 dated July 3,1989:

xxx

(3) A case is considered submitted for decision upon the admission of the evidence
of the parties at the termination of the trial. The ninety (90) day period for deciding
the case shall commence to run from submission of the case for decision without
memoranda; in case the Court requires or allows its filing, the case shall be
considered submitted for decision upon the filing of the last memorandum or the
expiration of the period to do so, whichever is earlier. Lack of transcript of
stenographic notes shall not be a valid reason to interrupt or suspend the period for
deciding the case unless the case was previously heard by another judge not the
deciding judge in which case the latter shall have the full period of ninety (90) days
from the completion of the transcripts within which to decide the same.

(4) The court may grant extension of time to file memoranda, but the ninety (90) days
period for deciding the case shall not be interrupted thereby.

(5) The foregoing rules shall not apply to Special Criminal Courts under Circular 20
dated August 7, 1987, and to cases covered by the Rule on Summary Procedure in

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which memoranda are prohibited.

xxx

Under Rule 30, Section 5(g), upon admission of the evidence, the case shall be deemed submitted for
decision, unless the court directs the parties to argue or to submit their respective memoranda or any
further pleadings.

As a general rule, no additional evidence may be presented at the rebuttal stage. Subject to the
discretion of the court, additional evidence may be submitted:

(1) if it is merely discovered;

(2) omitted through mistake or inadvertence; or

156
(3) when the purpose is to correct evidence previously offered.

Under Administrative Matter No. 00-2-01-SC amending the Rule 141 of the Rules of Court on Legal
Fees, it is provided in Sec. 2(b) that a fee shall be paid for motions for postponements, to wit:

For motions for postponement after completion of the pre-trial stage, one hundred (Php100) pesos for
the first, and an additional fifty (Php50) pesos for every postponement thereafter based on that for the
immediately preceding motion: Provided, however, that no fee shall be imposed when the motion is
found to be based on justifiable and compelling reason.

155
Yu v. Mapayo, No. L-29742, March 29, 1972, 44 SCRA 163.
156
Lopez v. Liboro, 81 Phil. 429 [1948].

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Civil Procedure

7. ADJUDICATION (Rule 36)

1. Concept and Requirements

Adjudication is the rendition of a judgment or final order which disposes of the case on the merits.

Under the Rules of Civil Procedure, judgment is used in its generic term and therefore synonymous
to decision. A judgment or final order determining the merits of the case shall be in writing personally
and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is
157
based, signed by him, and filed with the clerk of court.

2. Kinds of Judgment and Definitions

1. Without Reception of Evidence

1.1 Judgment on the Pleading

Where an answer fails to tender an issue, or otherwise admits the material allegations of the
adverse party’s pleading, the court may, on motion of that party, direct judgment on such
pleading. However, in actions for declaration of nullity or annulment of marriage or for legal
158
separation, the material facts alleged in the complaint shall always be proved.

1.2 Summary Judgment

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a


declaratory relief may, at any time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions for a summary judgment in his
159
favor upon all or any part thereof.

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief


is sought may, at any time, move with supporting affidavits, depositions or admissions for a
160
summary judgment in his favor as to all or any part thereof.

2. With Partial Reception of Evidence

2.1 Judgment by Default

If the defending party fails to answer within the time allowed therefore, the court shall, upon
motion of the claiming party with notice to the defending party, and proof of such failure,
declare the defending party in default. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such reception of evidence may be delegated to
161
the clerk of court.

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2.2 Judgment on Demurrer to Evidence:

After the plaintiff has completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the law the plaintiff has
shown no right to relief. If his motion is denied, he shall have the right to present
evidence. If the motion is granted but on appeal the order of dismissal is reversed, he
162
shall be deemed to have waived the right to present evidence.

Notes: A demurrer to evidence is differentiated from a motion to dismiss in that the former
can be availed of only after the presentation of plaintiff’s evidence while the latter is
instituted as a general rule before a responsive pleading is filed.

When the motion for a demurrer to evidence is granted, the judgment of the court is
considered on the merits and so it has to comply with Rule 36, Section 1, regarding the
requirement that judgment should clearly and distinctly state the facts and the law on which
163
it is based. If the motion is denied, the order is merely interlocutory.

3. Cases on Summary Judgment

1. The test for the propriety of a motion for summary judgment is whether the pleadings, affidavits
and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify
the findings that, as a matter of law, there is no defense to the action or the claim is clearly
164
meritorious.

2. Summary judgment may include a determination of the right to damages but not the amount of
165
damages. The court cannot also impose attorney’s fees in a summary judgment in the absence of
166
proof as to the amount thereof.

3. Mere denials, unaccompanied by any fact which would be admissible in evidence at a hearing, are
not sufficient to raise a genuine issue of fact sufficient to destroy a motion for summary judgment
167
even though such issue was formally raised by the pleadings. Where all the facts are within the
168
judicial knowledge of the court, summary judgment may be granted as a matter of law.

4. Courts are without discretion to deny a motion for summary judgment where there is no genuine
issue as to a material fact. Summary judgment is available even if the pleadings ostensibly show
169
genuine issue which by depositions or affidavits are shown not to be genuine.

5. Distinction between summary proceedings under Rule 34 (Judgment on the pleadings) and the
summary proceedings under Rule 35 (Summary Judgment)

A different rationale operates in the latter for it arises out of facts already established or admitted during
the pre-trial held beforehand, unlike the former where the judgment merely relies on the merits of the
170
movant’s allegations.

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6. Discretion of Court To Render Judgment on the Pleadings

Under the Rules, if there is no controverted matter in the case after the answer is filed, the trial court
has the discretion to grant a motion for judgment on the pleadings filed by a party. Where there are
actual issues raised in the answer, such as one involving damages, which require the presentation of
evidence and assessment thereof by the trial court, it is improper for a judge to render judgment
171
based on the pleadings alone.

172
7. A partial summary judgment may be rendered, but the same is interlocutory and not
173
appealable.

4. Ordinary Judgment

1. No judge should decline to render judgment by reason of the silence, obscurity, or insufficiency of
174
the law.

2. The court is not required to state in its decision all the facts found in the records. It is enough that
175
the court states the facts and law on which its decision is based.

Trial courts should not, however, merely reproduce everything testified to by the witnesses no matter
how unimportant and immaterial it may be, even if this might lighten their work. By such indolent
process, they only complicate and lengthen their decisions, beclouding and possibly misreading the
real issues in their tiresome narration of the facts, including even those without bearing in the case.
Judges should make an effort to sift the record and relieve it of all inconsequential matters, to give
them a clearer view of how the real question is to be resolved and a better idea of how this resolution
176
should be done.

2.1 Need to Particularize Facts

Without the concrete relation or statement in the judgment of the facts alleged and proved at
the trial, it is not possible to pass upon and determine the issue raised in litigation, inasmuch
as when the facts held to be proved are not set forth in a judicial controversy, it is impossible
to administer justice, to apply the law to the points argued, or to uphold the rights of the
litigant who has the law on his side.

It is not sufficient that the court or trial judge take into account the facts brought out in an
action the circumstances of each question raised, and the nature and conditions of the
proofs furnished by the parties. He must also set out in his decision the facts alleged by the
contending parties which he finds to have been proven, the conclusions deduced therefrom
and the opinion he has formed on the issues raised. Only then can he intelligently set forth
the legal grounds and considerations proper in his opinion for the due determination of the
177
case.

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2.2 Reason for Award of Attorney's Fees Must be Stated in the Body of the Decision

The exercise of judicial discretion in the award of attorney's fee under Article 2208 (ii) of the
New Civil Code demands a factual, legal, and equitable justification. Without such
justification, the award is a conclusion without a premise, its basis being improperly left to
178
speculation and conjecture.

3. The case should be decided in its totality, resolving all interlocutory issues in order to render
179
justice to all concerned and to end litigation once and for all.

4. To be binding, a judgment must be duly signed and promulgated during the incumbency of the
180
judge who signed it. However, it is not unusual for a judge who did not try a case to decide on the
181
basis of the records for the trial judge might have died, resigned, retired, or transferred.

5. The 90-day period to decide a case shall be reckoned with from the date said case is submitted
182
for decision despite the non-availability of the stenographic notes. In the same manner, the judge
183
should decide the case even if the parties failed to submit memoranda within the given periods.

157
Rules of Court, Rule 36, Sec. 1.
158
Rules of Court, Rule 34, Sec. 1.
159
Rules of Court, Rule 35, Sec. 1.
160
Ibid., Sec. 2.
161
Rules of Court, Rule 9, Sec. 3.
162
Rules of Court, Rule 33, Sec. 1.
163
Nepomuceno v. Commission on Elections, G. R. No. 60601, December 29, 1983, 126 SCRA 472.
164
Estrada v. Consolacion, No. L-40948, June 29, 1976, 71 SCRA 523.
165
Jugador v. de Vera, 94 Phil. 704 [1954].
166
Warner, Barnes & Co., Ltd. v. Luzon Surety Co., Inc., 95 Phil. 924 [1954].
167
Fletcher v. Krise, 4 Fed. Rules Service, 765, March 3, 1941.
168
Fletcher v. Evening Newspaper Co., 3 Fed. Rules Service, 539, June 28, 1940; Miranda v. Malate Garage &
Taxicab, Inc., 99 Phil. 670 [1956].
169
Diman v. Alumbres, G. R. No. 131466, November 27, 1998, 299 SCRA 459.
170
Velasquez v. Court of Appeals, G. R. No. 124049, June 30, 1999, 309 SCRA 539.
171
Spouses Hontiveros v. Regional Trial Court of Iloilo, Br. 25, G. R. No. 125465, June 29, 1999, 309 SCRA 340.
172
Rules of Court, Rule 35, Sec. 4.

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173
Guevarra v. Court of Appeals, Nos. L-49017 and L-49024, August 30, 1983, 124 SCRA 297.
174
Civil Code, Art. 9.
175
People v. Derpo, Nos. L-41040 and 43908-10, December 14, 1988, 168 SCRA 447.
176
People v. Molina, G. R. No. 70008, April 26, 1990, 184 SCRA 597.
177
People v. Escober, No. L-69564, January 29, 1988, 157 SCRA 541.
178
Mirasol v. dela Cruz, No. L-32552, July 31, 1978, 84 SCRA 337.
179
National Housing Authority v. Court of Appeals, L-50877, April 28, 1983, 121 SCRA 777.
180
Lao v. To-Chip, No. L-76597, February 26, 1988, 158 SCRA 243.
181
People v. Escalante, No. L-37147, August 22, 1984, 131 SCRA 237.
182
Lawan v. Moleta, A. M. No. 1696-MJ, June 19, 1979, 90 SCRA 579.
183
Salvador v. Salamanca, A. M. No. R-177-MTJ, September 24, 1986, 144 SCRA 276.

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8. REMEDIES AGAINST JUDGMENT AND FINAL ORDERS

1. Kinds of Remedies

1. Before Finality of Judgments or Final Orders:

(a) Motion for Reconsideration;

(b) Motion for New Trial; and

(c) Appeal.

2. After Finality of Judgments or Final Orders:

(a) Relief for Judgments or Final Orders;

(b) Petition for Certiorari; and

(c) Annulment of Judgment.

2. Motion for Reconsideration and New Trial

1. Common Rules

1.1 Time to File

A motion for reconsideration or new trial may be filed within the period for taking appeal.
Note that a pro forma motion for new trial or reconsideration shall not toll the reglementary
period. A pro forma motion for reconsideration or new trial is one which does not comply with
184
the requirements of Rule 37 and does not toll the reglementary period to appeal.

1.2 No motion for extension of time to file motion for reconsideration or new trial is
185
allowed.

1.3 A motion for reconsideration or new trial suspends the running of the period to appeal
but if denied, the movant has only the balance of the reglementary period within which to
186
take his appeal.

1.4 Resolution of motion

A motion for new trial or reconsideration shall be resolved within thirty (30) days from the

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time it is submitted for resolution. An order denying a motion for new trial or reconsideration
187
is not appealable, the remedy being an appeal from the judgment or final order.

2. Motion for Reconsideration

Grounds:

(1) damages awarded are excessive;

(2) evidence is insufficient to justify the decision or final order; and

188
(3) decision or final order is contrary to law.

2.1 A motion for reconsideration shall point out specifically the findings or conclusions of the
judgment or final order which are not supported by the evidence or which are contrary to
law, making express reference to the testimonial or documentary evidence or to the
189
provisions of law alleged to be contrary to such findings or conclusions.

190
2.2 No party shall be allowed a second motion for reconsideration.

3. Motion for New Trial

3.1 Grounds

Any of the following causes materially affecting the substantial rights of an aggrieved party:

3.1.1 Fraud, accident, mistake or excusable negligence which ordinary prudence


could not have guarded against and by reason of which such aggrieved party has
probably been impaired in his rights; or

3.1.2 Newly discovered evidence, which he could not, with reasonable diligence,
have discovered and produced at the trial, and which if presented would probably
191
alter the result.

3.2 Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of
fraud which prevented the aggrieved party from having a trial or presenting his case to the
court, or was used to procure the judgment without fair submission of the controversy.
Instances of collateral fraud are acts intended to keep the unsuccessful party away from the
court by a false promise of compromise, or purposely keeps him in ignorance of the suit, or
where the attorney fraudulently pretends to represent a party and connives at his defeat, or
192
corruptly sells out his client’s interest. It is to be distinguished from intrinsic fraud which
refers to the acts of a party at the trial which prevented a fair and just determination of the

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193
case and which could have been litigated and determined at the trial or adjudication of
the cases, such as falsification, false testimony and so forth, and does not constitute a
194
ground for new trial.

3.3 Mistake generally refers to mistakes of fact but may also include mistakes of law where,
in good faith, the defendant was misled in the case. Thus, a mistake as to the scope and
195
extent of the coverage of an ordinance, or a mistake as to the effect of a compromise
196
agreement upon the need for answering a complaint, although actually constituting
mistakes of law, have been considered sufficient to warrant a new trial.

3.4 Negligence must be excusable and generally imputable to the party but the negligence
of counsel is binding on the client just as the latter is bound by the mistakes of his
197
lawyer. However, negligence of the counsel may also be a ground for new trial if it was
198
so great such that the party was prejudiced and prevented from fairly presenting his case.

3.5 To warrant a new trial, newly discovered evidence:

(1) must have been discovered after trial;

(2) could not have been discovered and produced at the trial despite reasonable
diligence; and

199
(3) if presented, would probably alter the result of the action. Mere initial hostility
of a witness at the trial does not constitute his testimony into newly discovered
200
evidence.

3.6 A motion for new trial shall be supported by affidavits of merits which may be rebutted by
affidavits. An affidavit of merits is one which states:

(1) the nature or character of the fraud, accident, mistake or excusable negligence
on which the motion for new trial is based;

(2) the facts constituting the movant’s good and substantial defenses or valid causes
201
of action; and

(3) the evidence which he intends to present if his motion is granted.

202
An affidavit of merits should state facts and not mere opinions or conclusions of law. An
affidavit of merits is required only if the grounds relied upon are fraud, accident, mistake or
203
excusable negligence. Affidavits of merits may be dispensed with when the judgment is

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null and void as where the court has no jurisdiction over the defendant or the subject
204
matter, or is procedurally defective as where judgment by default was rendered before
205
the reglementary period to answer had expired, or where the defendant was
206
unreasonably deprived of his day in court as when no notice of hearing was furnished
207 208
him in advance. Affidavits of merits are not required in motions for reconsideration.

3.7 Effect of Granting of Motion For New Trial

If a new trial is granted in accordance with the provisions of this Rule, the original judgment
or final order shall be vacated, and the action shall stand for trial de novo; but the recorded
evidence taken upon the former trial, in so far as the same is material and competent to
209
establish the issues, shall be used at the new trial without retaking the same.

3. Appeal

Note: This subject shall be limited to appeal from first level courts to the Regional Trial
210 211
Court and appeals from the Regional Trial Court. Trial courts are not concerned with
the other kinds and modes of appeals.

1. General Principles

1.1 An appeal is a statutory right and part of due process. Perfection of an appeal in the
212
manner and within the period laid down by law is not only mandatory but also jurisdictional.

1.2 Only parties can appeal from a decision. A surety on a bond to insure execution of
judgment becomes a party when notice was served upon it for execution of the judgment and
213
may appeal from the order of execution.

1.3 A party cannot change the theory on appeal. Only issues pleaded in the lower court and
214
properly raised may be resolved by the appellate court. However, issues which are inferred
from or necessarily connected with the issue properly raised and pleaded may be resolved by
215
the appellate court.

1.4 Those which cannot be appealed:

(1) An order denying a motion for new trial or reconsideration;

(2) An order denying a petition for relief or any similar motion seeking relief from
judgment;

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(3) An interlocutory order;

(4) An order disallowing or dismissing an appeal;

(5) An order denying a motion to set aside a judgment by consent, confession or


compromise on the ground of fraud, mistake or duress, or any other ground vitiating
consent;

(6) An order of execution;

(7) A judgment or final order for or against one or more of several parties or in
separate claims, counterclaims, cross-claims and third-party complaints, while the
main case is pending, unless the court allows an appeal therefrom; and

(8) An order dismissing an action without prejudice.

In all of the above instances where the judgment or final order is not appealable, the
216
aggrieved party may file an appropriate special civil action under Rule 65.

1.5 Difference between final order and an interlocutory order

A final order is one that completely disposes of a case or of a particular matter. An


interlocutory order is one that does not finally dispose of a case and does not end the court’s
task of adjudicating the parties’ contentions and determining the rights and liabilities as
regards each other but obviously indicates that other things remain to be done by the
217
court.

It does not, however, necessarily mean that an order is not final simply because there is
something more to be done in the merits of the case. It is settled that a court order is final in
character if it puts an end to the particular matter resolved, leaving thereafter no substantial
proceeding to be had in connection therewith except its execution; and contrariwise, that a
given court order is merely of an interlocutory character if it is provisional and leaves
substantial proceedings to be had in connection with its subject in the court by whom it was
218
issued.

Thus, the issue whether an order is a final order is its effect on the rights of the parties. A
final judgment, order or decree is one that finally disposes of, adjudicates or determine the
rights, or some rights of the parties, either on the entire controversy or some definite and
219
separate branch thereof, and which concludes them until it is reversed or set aside. This
220
is best exemplified in actions where there are two stages, such as expropriation,
221 222
partition and in special proceedings where there are several stages.

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4. The Modes of Appeal

The three (3) modes of appeal are:

223
(1) ordinary appeal;

224
(2) petition for review; and

225
(3) appeal by certiorari (petition for review on certiorari).

5. Cognate Rules

1. As a general rule, in ordinary appeals, execution is stayed unless the rule or law provides
otherwise. Among these are:

(1) Decision in Forcible Entry and Unlawful Detainer, unless appellant stays immediate
execution by filing a notice of appeal, supersedeas bond and depositing in court a monthly
rental or compensation for the occupation as fixed by the court which rendered the
226
decision;

(2) Decision of the Metropolitan, Municipal or Municipal Circuit Trial Court or the Regional
Trial Court where execution pending appeal has been granted by the court of origin or in a
227
proper case by the appellate court upon good reasons to be stated in the order;

(3) Decision of the Regional Trial Court rendered in the exercise of its appellate jurisdiction
228
on cases tried and decided by the court of origin under Summary Procedure;

(4) Decision of Quasi-Judicial Agencies under the Rules of Court, Rule 43, Section 12,
unless otherwise provided for by the Court of Appeals;

229
(5) Decision in Cases of Injunction, Receivership, Support and Accounting.

2. Difference Between Question of Fact and Question of Law

When the question is the correctness or falsity of an alleged fact, the question is a question of fact.
When the question is what law is applicable in a given set of facts, the question is a question of
230
law.

3. Notice of Appeal

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It need not be approved by the Court which rendered the decision. The court however may deny it
due course if on its face, it was filed out of time or the appellate docket and other lawful fees have
not been paid. The court which rendered the decision cannot however deny due course to the Notice
231
of Appeal on the ground that the appeal is frivolous or dilatory.

4. Record on Appeal

A Record on Appeal is required in: (a) Special Proceedings; (b) Other cases of multiple or separate
232
appeals where the law or the Rules so require.

5. Perfection of appeal

A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the
notice of appeal in due time.

A party’s appeal by record on appeal is deemed perfected as to him with respect to the
subject matter thereof upon the approval of the record on appeal filed in due time.

In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection
of the appeals filed in due time and the expiration of the time to appeal of the other parties.

In appeals by record on appeal, the court loses jurisdiction only over the subject matter
thereof upon the approval of the records on appeal filed in due time and the expiration of the
233
time to appeal of the other parties.

6. Effect of Perfection of Appeal

The court which rendered the appealed decision loses its jurisdiction over the case. However, it may
still do the following:

(1) issue an order for the protection and preservation of the rights of the parties which do not
involve any matter litigated by the appeal;

(2) approve compromise of the parties prior to the transmittal of the record on appeal to the
appellate court;

(3) permit the prosecution of indigent appeals;

(4) order execution pending appeal in accordance with Section 2, Rule 39; and

234
(5) approve withdrawal of appeal.

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7. Period of time to appeal must be strictly enforced on considerations of public policy. The period is
235
mandatory and jurisdictional and the failure to do so renders the questioned decision final and
executory that deprives the appellate court of jurisdiction to alter the final judgment much less to
236 237
entertain the appeal or motion for new trial. The decision of the Court of Appeals after
238
expiration of the period to appeal is null and void.

184
Cledera v. Sarmiento, Nos. L-32450-51, June 10, 1971, 39 SCRA 552; Firme v. Reyes, No. L-35858, August 21,
1979, 92 SCRA 713.
185
Habaluyas Enterprises, Inc. v. Japson, No. L-70895, May 30, 1986, 142 SCRA 208.
186
Rules of Court, Rule 41, Sec. 3.
187
Ibid, Sec. 4.
188
Rules of Court, Rule 37, Sec. 1.
189
Ibid, Sec. 2.
190
Rules of Court, Rule 37, Sec. 5.
191
Ibid, Sec. 2.
192
Magno v. Court of Appeals, No. L-28486, September 10, 1981, 107 SCRA 285.
193
Palanca v. American Food Manufacturing Co., Inc., No. L-22822, August 30, 1968, 24 SCRA 819.
194
Tarca v. Vda. De Carretero, 99 Phil. 419 [1956]; Conde v. Intermediate Appellate Court, No. L-70443,
September 15, 1986, 144 SCRA 144.
195
City of Iloilo v. Pinzon, 97 Phil 968 [Unreported] [1955].
196
Salazar v. Salazar, 8 Phil. 183 [1907].
197
Gaba v. Castro, No. L-56171, January 31, 1983, 120 SCRA 505; Ayllon v. Sevilla, No. L-79244, December 10,
1987, 156 SCRA 257.
198
People v. Manzanilla, 43 Phil. 167 [1922]; cf. Republic v. Arro, No. L-48241, June 11, 1987, 150 SCRA 625.
199
National Shpiyards and Steel Corporation v. Asuncion, 103 Phil. 67 [1958].
200
Arce v. Arce, 106 Phil. 630 [1959].
201
Ferrer v. Yap Sepeng, No. L-39373, September 30, 1974, 60 SCRA 149.
202
Malipol v. Tan, No. L-27730, January 2, 1974, 55 SCRA 202; Ferrer v. Yap Sepeng, supra, note 201.
203
Ganaban v. Bayle, No. L-28804, November 27, 1969, 30 SCRA 365.
204
Republic v. De Leon, 101 Phil. 773 [1957].
205
Gonzalez v. Francisco, supra, note 62.
206
Valerio v. Tan, 99 Phil. 419 [1956].
207
Soloria v. Cruz, G. R. No. 20738, January 31, 1966, 16 SCRA 114; Gattoc v. Sarrenas, 104 Phil. 221 [1958].
208
Mendoza v. Bautista, No. L-45885, April 28, 1983, 121 SCRA 760.
209
Rules of Court, Rule 37, Sec. 6.

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210
Rules of Court, Rule 40.
211
Rules of Court, Rules 41 and 42.
212
Villanueva v. Court of Appeals, G. R. No. 99357, January 27, 1992, 205 SCRA 537; Borre v. Court of Appeals,
No. L-57204, March 14, 1988, 158 SCRA 560.
213
People’s Homesite and Housing Corporation v. Jeremias, G. R. No. 43252, September 30, 1976, 73 SCRA 239.
214
Medina v. Court of Appeals, G. R. No. 98334, May 8, 1992, 208 SCRA 887.
215
Espina v. Court of Appeals, G. R. No. 102128, November 6, 1992, 215 SCRA 484.
216
Rules of Court, Rule 41, Sec. 1.
217
Investments, Inc. v. Court of Appeals, No. L-60036, January 27, 1987, 147 SCRA 334.
218
De La Cruz v. Paras, G. R. No. 41053, February 27, 1976, 69 SCRA 556 cited in Republic v. Tacloban City Ice
Plant, Inc., G. R. No. 106413, July 5, 1996, 258 SCRA 145.
219
De la Cruz v. Paras, Ibid.; Gold City Integrated Port Services, Inc. (INPORT) v. Intermediate Appellate Court, G.
R. Nos. 71771-73, March 31, 1989, 171 SCRA 579.
220
Municipality of Biñan v. Garcia, G. R. No. 69260, December 22, 1989, 180 SCRA 576.
221
Miranda v. Court of Appeals, G. R. No. 80030, October 26, 1989, 178 SCRA 702.
222
Rules of Court, Rule 109, Sec. 1.
223
Rules of Court, Rules 40 and 41.
224
Rules of Court, Rules 42 and 43.
225
Rules of Court, Rule 45.
226
Rules of Court, Rule 70, Sec. 19.
227
Rules of Court, Rule 39, Sec. 2.
228
Revised Rules on Summary Procedure, Sec. 21.
229
Rules of Court, Rule 39, Sec. 4.
230
Cheesman v. Intermediate Appellate Court, G. R. No. 74833, January 21, 1991, 193 SCRA 93.
231
Ortigas & Co. Ltd. Partnership v. Velasco, G.R. No.109645, August 15, 1997, 277 SCRA 342.
232
Rules of Court, Rule 41, Sec. 2.
233
Rules of Court, Rule 41, Sec. 9.
234
Ibid.
235
Government Service Insurance System v. Gines, G. R. No. 85273, March 9, 1993, 219 SCRA 724.
236
De Castro, Jr. V. Court of Appeals, No. L-36021, February 29, 1988, 158 SCRA 288.
237
Velaso v. Ortiz, G. R. No. 51973, April 16, 1990, 184 SCRA 303.
238
Antonio v. Court of Appeals, No. L-77656, August 31, 1987, 153 SCRA 592.

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9. EXECUTION OF JUDGMENTS AND FINAL ORDERS (Rule 39)

1. Basic Concepts and Doctrines

239
1. Execution is a legal remedy for the enforcement of a judgment.

2. Kinds of Execution

There are two (2) kinds of execution: discretionary execution and ministerial execution. Discretionary
execution, which is also called execution pending appeal, is the execution of a judgment or final
order before it attains finality. The court which rendered the decision can grant an execution pending
appeal if it still retains jurisdiction over the case and is in possession of the records at the time of the
240
filing of the motion; otherwise, the motion shall be acted upon by the appellate court. To be valid,
there should be a good reason to justify the execution of the judgment pending appeal, the same to
241
be stated in the order granting it.

On the other hand, execution as a matter of right or ministerial execution is execution of a final
judgment or final order which has attained finality. When a judgment or order has become final, the
court cannot refuse to issue a writ of execution except:

(1) When subsequent facts and circumstances transpire which render such execution
unjust, or impossible, such as a supervening cause like the act of the Commissioner of Civil
Service finding the plaintiff administratively guilty and which constituted a bar to his
242
reinstatement as ordered by the trial court in a civil case; or where the defendant bank
243
was placed under receivership;

(2) On equitable grounds, as when there has been a change in the situation of the parties
244
which makes execution inequitable;

245
(3) Where the judgment has been novated by the parties;

(4) When a petition for relief or an action to enjoin the judgment is filed and a preliminary
246
injunction is prayed for and granted;

(5) Where the judgment has become dormant, the five (5) year period under Rule 39,
247
Section 6 having expired without the judgment having been revived; or

248 149
(6) Where the judgment turns out to be incomplete or is conditional since, as a matter
of law, such judgment cannot become final.

3. When writ of execution may be quashed

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(1) when it was improvidently issued;

(2) when it is defective in substance;

(3) when it is issued against the wrong party;

(4) where the judgment was already satisfied;

(5) when it was issued without authority;

(6) when a change in the situation of the parties renders execution inequitable; and

250
(7) when the controversy was never validly submitted to the court.

4. Execution of final judgments and orders

There are two (2) ways of securing execution of final judgments and orders: execution by motion and
execution by action. Execution by motion is an execution obtained through a motion for execution
251
filed within five (5) years from the date of its entry. Execution by action is obtained through the
substitution of an action to enforce a judgment or order after the lapse of five (5) years from its entry
252
and before it is barred by the statute of limitations.

5. Specific Rules

253
1. Execution of judgment can only be issued against a party to the action and their privies who
are those between whom an action is deemed binding although they are not literally parties to the
254 255
said action or to an intervenor.

2. A judgment becomes final and executory by operation of law, not by judicial declaration. The
prevailing party is entitled as a matter of right to a writ of execution, and the issuance thereof is a
256 257
ministerial duty and compellable by mandamus. There must, however, be a motion.

3. Rule on execution in case of the death of a party

If the judgment debtor dies after entry of judgment, execution depends upon the nature of the
judgment. Thus: (a) For recovery of real or personal property or the enforcement of a lien thereon,
execution may be done against executor, administrator or successor-in-interest; (b) For money
judgments, the judgment should be presented as claim for payment against the estate in a special
258
proceeding. Such a claim need no longer be proved, since the judgment itself is conclusive.

4. When the property subject of the execution contains improvements constructed or planted by the

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judgment debtor or his agent, the officer shall not destroy, demolish or remove said improvements
except upon special order of the court, issued upon petition of the judgment creditor after due
hearing and after the former has failed to remove the same within a reasonable time fixed by the
259
court.

The special order of demolition may be granted only upon petition of the plaintiff after due hearing,
and upon the defeated party’s failure to remove the improvements, within reasonable time given him
260
by the court.

The notice required before demolition of the improvements on the property subject of the execution
261
is notice to the judgment debtor, and not to a stranger or third party to the case. The order of
262
demolition is not appealable.

The sheriff and the issuing party should carry out the demolition of the improvement of the defeated
263
party on the premises in dispute in a manner consistent with justice and good faith.

Where the premises was padlocked and no one was therein at the time execution was carried into
effect, there was no need for the sheriffs and the plaintiff to secure a 'break-open' order inasmuch as
the character of the writ in their hands authorized them to break open the said premises if they could
264
not otherwise execute its command.

6. Levy and Garnishment

Levy is the seizure of property, personal and/or real, belonging to the judgment debtor for
subsequent execution sale to satisfy judgment. Garnishment is the process of notifying a third
person called the garnishee to retain and attach the property he has in his possession or under his
control belonging to the judgment debtor, to make disclosure to the court concerning the same, and
265
to dispose of the same as the court shall direct to satisfy the judgment.

1. Decisional Rules on Levy

1.1 A valid levy is essential to the validity of an execution sale, and levy is invalid if
the notice of levy of real property is not filed with the office of the register of deeds,
the purpose of which is to notify third parties who may be affected in their dealings
266
with respect to such property. Where a parcel of land levied upon execution is
occupied by a party other than a judgment debtor, the procedure is for the court to
267
order a hearing to determine the nature of said adverse possession.

1.2 To effect a levy upon real property, the sheriff is required to do two specific
things:

(a) file with the register of deeds, a copy of the order and

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description of the attached property and notice of attachment; and

(b) leave with the occupant of the property a copy of the same
268
order, description and notice.

Note that notice to the owner who is not the occupant does not constitute
269
compliance with the statute.

1.3 Real property, stocks, shares, debts, credits and other personal property, may
270
be levied on in like manner and with like effect as under a writ of attachment.

1.4 The levy on execution shall create a lien in favor of the judgment creditor over
the right, title and interest of the judgment debtor in such property at the time of the
271
levy, subject to liens and encumbrances then existing.

1.5 Levy or attachment over properties themselves is superior than levy on the
272
vendor’s equity of redemption over said properties.

2 Decisional Rules on Garnishment

2.1 The garnishment of property to satisfy a writ of execution operates as an


attachment and fastens upon the property a lien by which the property is brought
under the jurisdiction of the court issuing the writ. It is brought into custodia legis,
273
under the sole control of such court. It is also known as attachment execution.

2.2 Money judgments are enforceable only against property unquestionably


belonging to the judgment debtor. One man’s goods shall not be sold for another
274
man’s debts, as the saying goes.

2.3 The prohibition against examination or an inquiry into a bank deposit under Rep.
Act No. 1405 does not preclude its being garnished to insure satisfaction of
275
judgment.

2.4 Government-owned-and-controlled corporations have a personality of their own,


separate and distinct from the government; their funds, therefore, although
276
considered to be public in character, are not exempt from garnishment.

7. Rules on redemption

1. Who may redeem

1.1 Judgment debtor;

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1.2 Successor-in-interest such as a person to whom the debtor has conveyed his interest in
the property; person to whom a statutory right of redemption has been transferred; person
who succeeds to the interest of the debtor by operation of law; one or more joint owners of
the property; wife as regards her husband’s homestead; and attorney who agreed to divide
277
the property in litigation; and

1.3 Redemptioner, which is a creditor having a lien by virtue of an attachment, judgment or


mortgage on the property sold, or on some part thereof, subsequent to the lien under which
278
the property was sold.

2. Amounts to be paid in case of redemption

2.1 Purchase price with 1% per month interest;

2.2 Assessments or taxes paid with 1% interest:

2.3 Amount of prior lien if also a creditor having a prior lien to that of redemption other than
the judgment under which purchase was made with interest. Note that the foregoing does
not apply if the one who redeems is the judgment debtor unless he redeems from a
279
redemptioner in which case, he must make the same payments as redemptioner.

8. Rules in deed of possession

1. After the deed of sale has been executed, the vendee therein is entitled to a writ of possession but
the same shall issue only where it is the judgment debtor or his successors-in-interest who are in
possession of the premises. Where the land is occupied by a third party, the court should order a
280
hearing to determine the nature of his adverse possession. The writ shall issue when the period
of redemption has expired.

2. A writ of possession may be issued only in a land registration proceeding, in extrajudicial


foreclosure of a real estate mortgage and in judicial foreclosure if the debtor is in possession and no
281
third person, not a party to the suit, had intervened. It has been held, however, that a writ of
possession is a complement of the writ of execution. Hence, if under a final judgment the prevailing
party acquires absolute ownership over the real property involved, the writ may be issued for him to
282
obtain possession without the need of filing a separate action against the possessor. A writ of
possession may also be sought from and issued by the court unless a third party is holding the
283
property adversely to the judgment debtor.

239
Pelejo v. Court of Appeals, No. L-60800, August 31, 1982, 116 SCRA 406.
240
Rules of Court, Rule 39, Sec. 2.

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241
Ibid.
242
The City of Butuan v. Ortiz, 113 Phil. 636 [1961].
243
Lipana v. Development Bank of Rizal, G. R. No. 73884, September 24, 1987, 154 SCRA 257.
244
Vda. de Albar v. De Carandang, 116 Phil. 516 [1962]; Heirs of Guminpin v. Court of Appeals, No. L-34220,
February 21, 1983, 120 SCRA 687; Luna v. Intermediate Appellate Court, G. R. No. 68374, June 18, 1985, 137
SCRA 7.
245
Fua Cam Lu v. Yap Fauco, 74 Phil. 287 [1943]; Zapanta v. De Rotaeche, 21 Phil. 154 [1912]; Salvante v. Cruz,
88 Phil. 236 [1951].
246
Refer to Rules of Court, Rule 38, Sec. 5.
247
Cunanan v. Court of Appeals, No. L-25511, September 28, 1968, 25 SCRA 263.
248
Del Rosario v. Villegas, 49 Phil. 634 [1926]; Ignacio v. Hilario, 76 Phil. 605 [1946].
149
Cu Unjieng e Hijos v. Mabalacat Sugar Co., 70 Phil. 380 [1940].
250
Cobb-Perez v. Lantin, G. R. No. 22320, May 22, 1968, 23 SCRA 637; Sandico, Sr. v. Piguing, No. L-26115,
November 29, 1971, 42 SCRA 322.
251
Rules of Court, Rule 39, Sec. 6.
252
Ibid.
253
St. Dominic Corporation v. Intermediate Appellate Court, No. L-70623, June 30, 1987, 151 SCRA 577.
254
Cabresos v. Tiro, No. L-46843, October 18, 1988, 166 SCRA 400.
255
Lising v. Plan, No. L-50107, November 14, 1984, 133 SCRA 194.
256
Munez v. Court of Appeals, G.R. No. 46010, July 23, 1987, 152 SCRA 197; City of Manila v. Court of Appeals,
G.R. No. 100626 November 29, 1991, 204 SCRA 362.
257
Rules of Court, Rule 39, Sec. 1; Soco v. Court of Appeals, G. R. No. 116013, October 21, 1996, 263 SCRA 449.
258
Evangelista v. La Proveedora, Inc., No. L-32824, March 31, 1971, 38 SCRA 379.
259
Rules of Court, Rule 39, Sec. 14; Rom v. Cobadora, No. L-24764, July 17, 1969, 28 SCRA 758.
260
Fuentes v. Leviste, No. L-47363, October 28, 1982, 117 SCRA 958.
261
Lorenzana v. Cayetano, No. L-37051, August 31, 1977, 78 SCRA 485.
262
David v. Ejercito, No. L-41334, June 18, 1976, 71 SCRA 484, Cua v. Lecaros, No. L-71909, May 24, 1988, 161
SCRA 480.
263
Albeltz Investments, Inc. v. Court of Appeals, No. L-32570, February 28, 1977, 75 SCRA 310.
264
Arcadio v. Ylagan, A. C. No. 2734, July 30, 1986, 43 SCRA 168.
265
Rules of Court, Rule 39, Sec. 9.
266
Valenzuela v. De Aguilar, No. L-18083-84, May 31, 1963, 8 SCRA 212.
267
Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194.
268
Delta Motors Corporation v. Court of Appeals, No. L-78012, November 29, 1988, 168 SCRA 206.
269
Philippine Surety and Insurance Co., Inc. v. Zabal, No. L-21556, October 31, 1967, 21 SCRA 682.
270
Rules of Court, Rule 39, Sec. 15.
271
Ibid., Sec. 12.

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272
Top Rate International Services, Inc. v. Intermediate Appellate Court, No. L-674996, July 7, 1986, 142 SCRA
467.
273
De Leon v. Salvador, No. L-30871, December 28, 1970, 36 SCRA 567.
274
Ong v. Tating, No. L-61042, April 15, 1987, 149 SCRA 265.
275
China Banking Corporation v. Ortega, No. L-34964, January 31, 1973, 49 SCRA 355.
276
Philippine National Bank v. Pabalan, No. L-33112, June 15, 1978, 83 SCRA 595.
277
Magno v. Viola, 61 Phil. 80 [1934]; Palicte v. Ramolete, No. L-55076, September 21, 1987, 154 SCRA 132.
278
Sec. 27 (b).
279
2 Moran 329 [1979].
280
Guevara v. Ramos, No. L-24358, March 31, 1971, 38 SCRA 194; Unchuan v. Court of Appeals (Fifth Division),
No. L-78775, May 31, 1988, 161 SCRA 710.
281
Gatchalian v. Arlegui, No. L-35615, February 17, 1977, 75 SCRA 234.
282
Olego v. Rebuena, No. L-39350, October 29, 1975, 67 SCRA 446.
283
Roxas v. Buan, No. L-53798, November 8, 1988, 167 SCRA 43.

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PART TWO - Provisional Remedies

Common Rules

1. Provisional remedies are:

(1) Those to which parties litigant may resort for the preservation or protection of their rights
or interest, and for no other purpose during the pendency of the action.

(2) They are applied to a pending litigation, for the purpose of securing the judgment or
preserving the status quo, and in some cases after judgment, for the purpose of preserving
284
or disposing of the subject matter.

2. The provisional remedies are

(1) Attachment (Rule 57);

(2) Preliminary Injunction (Rule 58);

(3) Receivers (Rule 59);

(4) Replevin (or delivery of private property) ( Rule 60); and

(5) Alimony Pendente Lite (Rule 61).

Affidavits are required to support the issuance of any of these remedies and, with the exception of
alimony pendente lite, a bond to answer for damages by reason of the improvident issuance of the
285
writ. Recovery of damages from the bond is governed by Rule 57, Section 20.

284
Calo v. Roldan, 76 Phil. 445 [1946].
285
Rules of Court, Rule 58, Sec. 8; Rule 59, Sec. 9; Rule 60, Sec. 10.

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Civil Procedure

A. Attachment

1. Definition

A writ of preliminary attachment is a provisional remedy issued upon order of the court where an
action is pending to be levied upon the property or properties of the defendant therein, the same to
be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be
286
secured in said action by the attaching creditor against the defendant.

2. Concept and Purpose.

Attachment is a juridical institution which has for its purpose to secure the outcome of the
trial, that is, the satisfaction of the pecuniary obligation really contracted by a person or
believed to have been contracted by him, either by virtue of a civil obligation emanating
from contract or from law, or by virtue of some crime or misdemeanor that he might have
committed, and the writ issued, granted it, is executed by attaching and safely keeping all
the movable property of the defendant, or so much thereof as may be sufficient to satisfy
287
the plaintiff’s demands.

The chief purpose of the remedy of attachment is to secure a contingent lien on


defendant’s property until plaintiff can, by appropriate proceedings, obtain a judgment and
have such property applied to its satisfaction, or to make some provision for unsecured
debts in cases where the means of satisfaction thereof are liable to be removed beyond the
jurisdiction, or improperly disposed of or concealed, or otherwise placed beyond the reach
288
of creditors.

3. Nature and Scope: Attachment Purely Statutory

Attachment is not a distinct proceeding in the nature of an action in rem but it is a proceeding to an
action of law, designed to secure the payment of any judgment the plaintiff may obtain.

Attachment, as a provisional remedy, is purely a statutory one. It does not exist unless expressly
granted by the statute. It is therefore not available except in those cases where the statute
289
expressly permits. For this purpose, the party seeking an attachment must show that a sufficient
cause of action exists and that the amount due him as much as the sum for which the order of
290
attachment is sought.

4. Strict Compliance with the Rule

The rule on the issue of a writ of attachment must be construed strictly in favor of the defendant. If
all the requisites for the issuance of the writ are not present, the court, which issues it acts in
291 292
excess of jurisdiction. It should be issued only on concrete and specific grounds.

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5. Attachment to Acquire Jurisdiction Over the Res

Attachment is intended to confer jurisdiction by the court over the res. When real property of a non-
resident defendant located in Philippines is attached to answer for the claim of the plaintiff, the court
acquires jurisdiction over the res and in that event, the jurisdiction over the person of said
293
defendant is not essential.

6. Stages in the Issuance of the Writ

The grant of the provisional remedy of attachment practically involves three (3) stages: first, the
court issues the order granting the application; second, the writ of attachment issues pursuant to
the order granting the writ; and third, the writ is implemented. For the initial two stages, it is not
necessary that jurisdiction over the person of the defendant should first be obtained. However, once
the implementation commences, it is required that the court must have acquired jurisdiction over
the defendant for without such jurisdiction, the court has no power and authority to act in any
294
manner against the defendant. Any order issuing from the court will not bind the defendant.

A preliminary attachment is a rigorous remedy which exposes the debtor to humiliation and
annoyance, such that it should not be abused to cause unnecessary prejudice. It is, therefore, the
duty of the court, before issuing the writ, to ensure that all the requisites of the law have been
complied with; otherwise, the judge acts in excess of its jurisdiction and the writ so issued shall be
295
null and void.

The affidavit must establish that:

1) a sufficient cause of action exists;

2) the case is one of those mentioned in Rule 57, Section 1;

3) there is no sufficient security for the claim sought to be enforced by the action;

4) the amount due to the applicant is as much as the sum for which the order is granted
above all legal counterclaims.

Failure of the affidavit to show that there is no other sufficient security for the claim sought to be
enforced by the action, that the said amount due to the plaintiff above all legal set-offs or
counterclaim is as much as the sum for which the order is sought renders that application fatally
296
defective.

Whether or not the affidavit sufficiently established facts therein stated is a question to be
determined by the court in the exercise of sound discretion. The mere filing of an affidavit reciting
the facts required by the above provision is not sufficient to compel the judge to grant the writ. It all
depends upon the amount of credit given it by the judge who may accept or reject it in the exercise

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297
of his discretion.

7. Orders granting or denying provisional remedies are merely interlocutory and cannot be the
subject of an appeal. They may however be challenged before a superior court through a petition
for certiorari under Rule 65.

8. Important Jurisprudential Rules

8.1 The purposes of preliminary attachment are:

1) to seize the property of the debtor in advance of final judgment and to hold it for
purposes of satisfying the said judgment; or

2) to enable the court to acquire jurisdiction over the action by the actual or
constructive seizure of the property in those instances where personal service of
298
summons on the creditor cannot be effected.

Thus, a proceeding in attachment is in rem where the defendant does not appear, and in
299
personam where he appears in the action. Where a lien already exists, e.g. a maritime
300
lien, the same is equivalent to an attachment, just like that under a real estate mortgage.

8.2 Rule on Prior or Contemporaneous Jurisdiction

Although a writ of preliminary attachment may be issued ex-parte or even before service of
summons on the defendant, it cannot however be implemented until the court has acquired
301
jurisdiction over the person of the defendant.

8.3 When the ground relied upon in asking for preliminary attachment is impending
fraudulent removal, concealment and disposition of defendant’s property under paragraphs
(d) and (e) of Section 1, Rule 57, the court should either conduct a hearing or require the
submission of counter-affidavits from the defendant to gather facts in support of the
302
allegations of fraud.

8.4 Preliminary attachment may be granted in an action for a specified amount even when
303
the claim is unliquidated other than for moral and exemplary damages.

8.5 If a property has been levied upon by virtue of a writ of preliminary attachment, it
becomes one under custodia legis and a subsequent extrajudicial foreclosure of said
304
property by a third-party mortgagee does not affect the lien created by the attachment.

8.6 A foreign corporation duly licensed to do business in the Philippines is not a non-
resident within the meaning of Section 1(f), Rule 57; hence, its property here may not be

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305
attached on the mere ground that it is a non-resident. Insolvency of the defendant debtor
306
is not a ground ofr the issuance of a writ of preliminary attachment. Section 1(f),
concerning summons by publication, refers to those cases in Sections 14 and 16 of Rule 14.

8.7 Property exempt from execution is also exempt from preliminary attachment or
307
garnishment. Garnishment does not lie against the funds of the regular departments or
offices of the Government, but funds of public corporations are not exempt from
308
garnishment.

286
Adlawan v. Tomol, G.R. No. 63225, April 3, 1990, 184 SCRA 31; Cuartero v. Court of Appeals, G.R. No.
102448, August 5, 1992 212 SCRA 260 Cited in Chemphil Export and Import Corporation (CEIC) v. Court of
Appeals, G.R. No. 112438-39, December 12, 1995, 251 SCRA 257.
287
Guzman v. Catolica, 65 Phil. 257 [1937]; Gruenberg v. Court of Appeals, No. L-45948, September 10, 1985, 138
sCRA 471 Cited in CEIC v. Court of Appeals, supra, note 286.
288
Spouses Salgado v. Court of Appeals, No. L-55381, March 26, 1984, 128 SCRA 395; CEIC v. Court of Appeals,
supra, note 286.
289
U.S. v. Namit, 38 Phil. 926 [1918].
290
General v. De Venecia, 78 Phil. 780 [1947]
291
Gruenberg v. Court of Appeals, supra, note 287.
292
Dy vs. Enage, No. L - 35351, March 17, 1976, 70 SCRA 96.
293
Mabanag v. Gallemore, 81 Phil. 254 [1948]
294
Cuartero v. Court of Appeals, G.R. No. 102448, August 5, 1992, 212 SCRA 260.
295
Salas v. Adil, No. L-46009, May 14, 1979, 90 SCRA 121; Spouses Salgado v. Court of Appeals, supra, note 288.
296
Guzman v. Catolica, supra, note 287; K.O. Glass Construction Co., Inc. v. Valenzuela, No. L-48756, September
11, 1982, 116 SCRA 563; Jardine Manila Finance, Inc. v. Court of Appeals, G.R. No. 55272, April 10, 1989, 171
sCRA 636.
297
La Granja Inc. v. Samson, 58 Phil. 378 [1933].
298
Mabanag v. Gallemore, supra, note 293; Quasha v. Juan, No. L-49140, November 19, 1982, 118 SCRA 505.
299
Banco Espanol-Filipino v. Palanca, 37 Phil. 921 [1918].
300
Quasha v. Juan, supra, note 298.
301
Rules of Court, Rule 57, Sec. 5.
302
Adlawan v. Torres, G.R. Nos 65957-58, July 5, 1994, 233 SCRA 645.
303
Rules of Court, Rule 57, Sec. 1(a).
304
Consolidated Bank and Trust Corporation v. Intermediate Appellate Court, No. L-73796, May 29, 1987, 150
SCRA 591.
305
Claude Neon Lights, Fed., Inc. v. Philippine Advertising Corporation, 57 Phil. 607 [1932].
306
Aboitiz and Co., Inc. v. Provincial Sheriff, No. L-35990, June 17, 1981, 105 SCRA 88.

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307
Rules of Court, Rule 57, Sec. 5
308
Philippine National Bank v. Pabalan, No. L-33112, June 15, 1978, 83 SCRA 595.

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Civil Procedure

Preliminary Injunction and Temporary Restraining Order

There is no power the exercise of which is more delicate which requires greater caution, deliberation,
and sound discretion, or (which is) more dangerous in a doubtful case than the issuing of an
injunction, it is the strong arm of equity that never ought to be extended unless to cases of great
309
injury, where courts of law cannot afford an adequate or commensurate remedy in damages.

1. Two (2) kinds of Preliminary Injunction

1.1 Preliminary Prohibitory Injunction which requires a person to refrain from a particular act;
and

1.2 Preliminary Mandatory Injunction which requires a person to perform a particular act.

Caveat: Administrative Circular 07-99 To all judges of all lower courts: Re Exercise of Utmost
Caution, Prudence, and Judiciousness in Issuance of Temporary Restraining Orders and Writs of
Preliminary Injunction

2. Purpose

To prevent future injury and maintain the status quo — the last actual, peaceable, uncontested
310
status which preceded the pending controversy.

311
The sole object of preliminary injunction is to maintain the status quo until the merits can be heard.

312
Suspension of orders is equivalent to injunction.

A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a


litigant to protect or preserve his rights or interest and for no other purpose during the pendency of
313
the principal action.

3. Definition of status quo

The status quo is the last actual peaceable uncontested status that preceded the pending
314
controversy.

When parties are ordered to maintain the status quo in a TRO, but the prevailing condition at the time of its issuance is
already that resulting from acts of usurpation by one of the parties, which acts of usurpation are clearly established in the
pleadings, that TRO amounts to a perpetuation of the injurious effects of such acts of usurpation; such a state of things
315
cannot clearly be allowed, for the office of the writ of injunction is to restrain the wrongdoer, not to protect him.

4. Independent action merely to obtain preliminary injunction is not allowed. Some

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316
substantive relief must be sought.

A writ of preliminary injunction, as an ancillary preventive remedy, may only be resorted to by a


litigant to protect or preserve his rights or interest and for no other purpose during the pendency of
317
the principal action.

5. Essential Requisites for Issuance of Preliminary Injunction

5.1 There must be right in esse or the existence of a right to be protected.

318
5.2 The act against which the injunction is to be directed is a violation of such right.

6. Rulings

6.1 A writ of preliminary injunction, as an ancillary or preventive remedy, may only be


resorted to by a litigant to protect or preserve his rights or interests and for no other purpose
319
during the pendency of the action. It should only be granted if the party asking for it is
320
clearly entitled thereto.

6.2 An injunction will not issue to protect a right not in esse and which may never arise or to
restrain an act which does not give rise to a cause of action. There must exist an actual
321
right.

7. Summary denial without adequate hearing improper

While in the issuance of preliminary injunction, the courts are given sufficient discretion to determine
the necessity for the grant of the relief prayed for as it affects the respective rights of the parties, with
the caveat that extreme caution be observed in the exercise of such discretion, it is with an equal
degree of care and caution that courts ought to proceed in the denial of the writ. It should not just
summarily issue an order of denial without an adequate hearing and judicious evaluation of the
merits of the application. A perfunctory and improvident action in this regard would be a denial of
322
procedural due process and could result in irreparable prejudice to a party.

8. When hearing on the merits unnecessary

xxx If the ground is the insufficiency of the complaint, the same is apparent from the complaint itself. Preliminary injunction
in such a circumstance may be refused outright, with or without notice to the adverse party. In fact, under Section 6 of Rule
58, the court may also refuse an injunction on other grounds on the basis of affidavits which may have been submitted by
the parties in connection with such application. xxx

xxx (Section 7 of Rule 58) merely specifies the actions that the court may take on the application for the writ if there is a
hearing on the merits. It does not declare that such hearing is mandatory or prerequisite thereof. Otherwise, the courts will
be forced to conduct a hearing even if from a consideration of the pleadings alone it can readily be ascertained that the
movant is not entitled to the writ. xxx

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It would be different xxx if there is a prima facie showing on the face of the motion or pleadings that the grant of preliminary
injunction may be proper, in which case notice to the opposing party would be necessary since the grant of such writ on an
ex parte proceeding is now proscribed.xxx

(If there is a prima facie showing that preliminary injunction is proper) a hearing should be conducted, since under such
circumstance, only in cases of extreme urgency will the writ issue prior to a final hearing. Such requirement for prior notice
and hearing underscores the necessity that a writ of preliminary injunction is to be dispensed with circumspection and both
sides should be heard whenever possible. But it does not follow that such a hearing is indispensable where right at the
outset the court is reasonably convinced that the writ will not lie. What was then discouraged and is now specifically
323
prohibited is the issuance of the writ without notice and hearing. Xxx

9. Cases where Injunction was held improper

324
9.1 To restrain collection of taxes except where there are special circumstances that bear
325
the existence of irreparable injury.

9.2 To restrain the sale of conjugal properties where the claim can be annotated on the title
326
as a lien such as the husband’s obligation to give support.

327
9.3 To restrain a mayor proclaimed as duly elected from assuming his office.

328
9.4 Against consummated acts.

329
9.4.1 Against disposing of the case on the merits.

9.4.2 Writ of injunction is not proper to stop the execution of judgment where the
330
judgment was already executed.

9.4.3 The CFI has no power to issue a writ of injunction against the Register of
Deeds if its effect is to render nugatory a writ of execution issued by the National
331
Labor Relations Commission.

9.4.4 A writ of injunction is not proper to stop the execution of judgment where the
332
judgment was already executed.

But where the lower court enforced its judgment before a party against whom the
execution was enforced could elevate her appeal in an injunction suit, which was
instituted to prevent said execution, an independent petition for injunction in the
333
Court of Appeals is justified.

9.4 Not Allowed To Transfer Possession

A court should not by means of a preliminary injunction transfer the property in litigation from

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the possession of one party to another where the legal title is in dispute and the party having
334
possession asserts ownership thereto. The function of injunction is to preserve the status
335
quo ante.

This is more particularly applicable where the legal title is in dispute and the party having
336
possession asserts ownership in himself.

10. Exceptions

337
10.1 Forcible entries in which the Court may issue preliminary mandatory injunction and
by Section 20 thereof involving leases in which the court may, on appeal, grant similar
mandatory injunctive relief. The exception applies only to ejectment cases exclusively
338
cognizable by the municipal court.

10.2 Property covered by Torrens Title when there is a clear finding of ownership and
possession of the land or unless the subject property is covered by a Torrens Title pointing
339
to one of the parties as the undisputed owner.

11. Cases where injunction prohibited

340
11.1 Injunction against courts or tribunals of co-equal rank prohibited.

341
11.2 Injunction orders are prohibited in the labor cases.

342
11.3 No injunction beyond prayer in complaint.

343
11.4 To enjoin the prosecution of criminal proceedings.

344
12. Cases where Criminal Prosecutions were Enjoined

1) For the orderly administration of justice;

2) To prevent the use of the strong arm of the law in an oppresive and vindictive manner;

3) To avoid multiplicity of actions;

4) To afford adequate protection of constitutional rights;

345
5) In proper cases because the statute relied upon is unconstitutional or was held invalid;

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346
6) Where the constitutionality of the Chinese Book Keeping Law was questioned;

7) Where the hearing of the libel case was enjoined by permanent injunction after the
Supreme Court in a separate case found the communication alleged to be libelous as
347
privileged and not libelous;

348
8) Where a traffic ordinance was found to be invalid; and

9) Where the fiscal was restrained from further proceeding with criminal case found to be
349 350
civil in nature. Note: This was later on reconsidered.

13. Mandatory Injunction

13.1 Requisites

A mandatory injunction is granted only on a showing that:

(1) The invasion of the right is material and substantial;

(2) The right of a complainant is clear and unmistakable;

(3) There is an urgent and permanent necessity for the writ to prevent serious
351
damage.

14. Cases where Mandatory Injunction not Granted

Mandatory injunction was not granted in the following instances:

352
(1) to compel cohabitation;

353
(2) in cancellation of attachment; and

354
(3) in release of imported goods pending hearing before Commissioner of Customs.

(4) Injunctions are also not available to take property out of the possession or control of one
355
party and place it into that of another whose title has not clearly been established. The
356 357
office of the writ of injunction is to restrain the wrongdoer not to protect him.

15. Injunction against courts or tribunals of co-equal rank is prohibited

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Civil Procedure

15.1 A court may not interfere by injunction with the judgments or orders of another court of
358
coordinate and concurrent jurisdiction.

The principle applies regardless of whether it is an ordinary action or a special civil action.

15.2 No writ may be issued by the Regional Trial Court against quasi-judicial bodies of equal
359
rank such as Social Security Commission, Securities and Exchange Commission,
Intellectual Property Office, Commission on Elections, or Workmen’s Compensation
360
Commission.

15.3 Inferior courts may issue writs of preliminary injunction only in forcible entry and
unlawful detainer cases. The exclusive original jurisdiction of the inferior court in civil cases
361
now includes the grant of provisional remedies in proper cases.

16. Statutory Prohibitions against the Issuance of a Writ of Preliminary Injunction

Injunction orders are prohibited in the following cases:

16.1 Under Batas Pambansa Blg. 227 amending Art. 255 (Labor Code), no temporary or
permanent injunction in cases growing out of labor dispute shall be issued by a court or
362
other entity except as otherwise provided in Articles 281 and 264 of this Code.

Under Presidential Decree No. 218, it is the National Labor Relations Commission (NLRC)
363
that issues an injunction in labor disputes.

16.2 Rep. Act No. 8735

Prohibition of issuance of temporary restraining orders, preliminary injunctions, or


preliminary mandatory injunctions against government infrastructure projects.

The law expressly repeals Presidential Decree No. 605 (prohibiting injunction involving
concessions, licenses and other permits issued by public administrative office or bodies for
the exploitation of natural resources) and Presidential Decree No. 1818 (prohibiting
injunction in cases involving infrastructures and natural resources development and public
364
utilities) .

16.3 Presidential Decree No. 385

Prohibition to issue injunction against any government financing institution in any action
taken by such institution in connection with the mandatory foreclosure where arrears amount
to at least 20% of the total outstanding obligations including interest and other charges as
appearing in the book of accounts and/or related records of the financial institutions

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365
concerned.

Presidential Decree No. 385 cannot however, be applied where the extent of the loan
366
actually received by the borrower is still to be determined.

It is not also applicable to properties already foreclosed. The prohibition found in Presidential
Decree No. 385 against the issuance of injunctions by lower courts, unless certain
conditions are met, applies only to foreclosure proceedings initiated by government financing
367
institutions like the Development Bank of the Philippines.

16.4 No restraining order or preliminary injunction against the Presidential Agrarian Reform
Council (PARC)

No court in the Philippines shall have jurisdiction to issue any restraining order or writ of
preliminary injunction against PARC or any of its duly authorized or designated agencies in
any case, dispute or controversy arising from, necessary to, or in connection with the
application, implementation, enforcement, or interpretation of this Act and other pertinent
368
laws on agrarian reform.

369
16.5 Prohibition to issue injunction against the Asset Privatization Trust (APT)

16.6 A court should issue a writ of preliminary injunction only when the petitioner assailing a
statute or administrative order has made out a case of unconstitutionality aside from
370
showing a clear legal right to the remedy sought.

16.7 Presidential Decree No. 605 which prohibits courts from exercising jurisdiction to issue
preliminary injunction in a case involving the issuance or approval by administrative officials
of public grants in connection with the exploitation of natural resources, does not apply in a
case where the complaint does not put in issue the legitimacy of the defendant’s claim of
371
being holders of mining lease contracts, but asserts that defendants had rights.

17. Injunctions not issued where act sought to be prevented had been committed

An injunction suit becomes moot and academic after the act sought to be enjoined had already been
372
consummated. A prohibitory injunction cannot be issued when the act sought to be enjoined has
373
already been committed.

18. No injunction beyond prayer in complaint

374
Courts should not issue orders or injunctions beyond those prayed for in the complaint.

19. Temporary Restraining Order

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Civil Procedure

The procedural guidelines in the issuance of TRO and Preliminary Injunction in a Multiple Sala Court
are provided for in Supreme Court Administrative Circular No. 20-95.

When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any
initiatory pleading, the case, if filed in a multiple-sala court, shall proceed as follows:

(a) Verified application and bond for preliminary injunction or temporary restraining order;

(b) Determination from facts shown by affidavits or by the verified application that great or irreparable injury
would result to the applicant before the matter can be heard on notice.

(c) If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the
executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a
temporary restraining order effective for only seventy-two (72) hours from issuance;

(d) In either case, even if no TRO had been issued because there is no extreme urgency, the case shall be
raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event,
such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a
copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the
Philippines.

However, (1) where the summons could not be served personally or by substituted service despite diligent
efforts, or (2) the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident
thereof, the requirement of prior or contemporaneous service of summons shall not apply.

(e) If no TRO has been issued because there is no extreme urgency, the application for a temporary restraining
order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be
conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the
branch selected by raffle and to which the records shall be transmitted immediately.

(f) Within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a
summary hearing to determine whether the temporary restraining order shall be extended until the application for
preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining
order exceed twenty (20) days, including the original seventy-two hours provided herein.

(g) Determination within twenty days from service of the TRO on the party sought to be enjoined whether a
preliminary injunction shall issue or not.

(h) The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to
that effect and no court shall have authority to extend or renew the same on the same ground for which it was
issued. Another restraining order may, therefore, be issued provided it is not based on the same ground.

309
28 Am. Jur. 201, IV-A Vicente J. Francisco, The Revised Rules of Court of the Philippines 179 [1971] quoted in
University of the Philippines v. Catungal, Jr. G.R. No. 121863 May 5,1997, 272 SCRA 221, 236.
310
Rivera v. Florendo, No. L-57586, October 8, 1986, 144 SCRA 643; Knecht v. Court of Appeals, G. R. No.
56122, November 18, 1993, 228 SCRA 1.
311
Searth Commodities Corp. v. Court of Appeals, G. R. No. 64200, March 31, 1992, 207 SCRA 622.
312
Philippine National Bank v. Adil, G. R. No. L-52853, November 2, 1982, 118 SCRA 110.

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313
Bengzon v. Court of Appeals, No. L-82568, 31 May 1988, 161 SCRA 745.
314
Searth Commodities Corp. v. Court of Appeals, supra, note 311.
315
Buayan Cattle Co., Inc. v. Quintillan, G. R. No. L-26970, March 19, 1984, 128 SCRA 276; Villanueva v. Court
of Appeals, G. R. No. 117661, July 15,1996, 259 SCRA 14 .
316
Bengzon v. Court of Appeals, G.R. No. 82568, May 31, 1988, 161 SCRA 745; Cootauco v. Court of Appeals, G.
R. No. 56565, June 16, 1988, 162 SCRA 122; Buayan v. Quintillan, supra, note 315.
317
Ibid.
318
Buayan Cattle Co. v. Quintillian, supra, note 315; Saulog v. Court of Appeals, G.R. No. 119769 September 18,
1996, 262 SCRA 51; Arcega v. Court of Appeals G.R. No 122206 July 7, 1997, 275 SCRA 176.
319
China Banking Corporation v. Court of Appeals G.R. No. 121158, December 5, 1996, 265 SCRA 327.
320
Climaco v. Macadaeg, 114 Phil. 870 [1962]; Subido v. Gopengco, G. R. No. 25618, March 28, 1969, 27 SCRA
455; Police Commission v. Bello, G. R. Nos. 29959-60, January 30, 1971, 37 SCRA 230; Capitol Medical Center,
Inc. v. Court of Appeals, G.R. No. 82499, Oct. 13, 1989, 178 SCRA 493.
321
Republic of the Philippines v. Villarama G.R. No. 117733, September 5, 1997, 278 SCRA 736; Buayan v.
Quintillan, supra, note 315.
322
Bataclan v. Court of Appeals, G. R. No. 78148, July 31, 1989, 175 SCRA 764.
323
Valley Trading Co., Inc. v. Court of First Instance, G.R. No. 49529, 31 March 1989, 171 SCRA 501.
324
Ibid.
325
Churchill & Tait v. Rafferty, 32 Phil. 580 [1915].
326
Saavedra v. Estrada 56 Phil.33 [1931].
327
Cereno v. Dictado, No. L-81550, April 15, 1988, 160 SCRA 759.
328
Philippine National Bank v. Adil, supra, note 312.
329
Government Service Insurance System (GSIS) v. Florendo, G. R. No. 48603, September 29, 1989, 178 SCRA 76;
Ortigas and Company Limited Partnership v. Court of Appeals, No. L-79128, June 16, 1988, 162 SCRA 165.
330
Meneses v. Dinglasan, 81 Phil. 470 [1948].
331
Ambrosio v. Salvador, No. L-47651, December 11, 1978, 87 SCRA 217.
332
Meneses v. Dinglasan, supra, note 330.
333
Manila Surety and Fidelity v. Teodoro, G. R. No. 20530, June 29, 1967, 20 SCRA 463.
334
Toyota Motors Philippines Corporation v. Court of Appeals, G. R. No. 102881, Dec. 7, 1992, 216 SCRA 236.
335
Knecht v. Court of Appeals, G. R. No. 56122, November 18, 1993, 228 SCRA 1.
336
Gordillo and Martinez v. Del Rosario, 39 Phil. 829 [1919].
337
Rules of Court, Rule 70, Sec. 15.
338
Ramos v. Court of Appeals, G.R. 81354, July 26, 1988, 163 SCRA 583.
339
GSIS v. Florendo, supra, note 329; Cagayan de Oro City Landless Residents Association, Inc. v. Court of
Appeals, G. R. No. 106043, March 4, 1996, 254 SCRA 229.
340
Roldan, Jr. v. Arca, G. R. No. 25434, July 25, 1975, 65 SCRA 336.
341
Associated Labor Union (AKU-TUCP) v. Borromeo, No. L-75736, September 29, 1988, 166 SCRA 99;
Kaisahan ng mga Manggagawa v. Sarmiento, No. L-47853, November 16, 1984, 133 SCRA 220.

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342
The Chief of Staff, AFP v. Guadiz, Jr., No. L-35007, December 39, 1980, 101 SCRA 827.
343
Romero v. The Chief of Staff, AFP, G. R. No. 84076, February 20, 1989, 170 SCRA 108; Reyes v. Camilon, G.
R. No. 46198, December 20, 1990, 192 SCRA 445.
344
Brocka v. Enrile, G. R. Nos. 69863-65, December 10, 1990, 192 SCRA 182.
345
Justiniani v. Castillo, No. L-41114, June 21, 1988, 162 SCRA 378.
346
Yu Cong Eng v. Trinidad, 47 Phil. 385 [1925].
347
Ang v. Castro, G. R. No. L-66371, May 15, 1985, 136 SCRA 453; Justiniani v. Castillo, supra, note 345.
348
Primicias v. Municipality of Urdaneta, Pangasinan, No. L-26702, October 18, 1979, 93 SCRA 462.
349
Guingona v. City Fiscal of Manila, No. L-60033, April 4, 1984, 128 SCRA 577.
350
Guingona v. City Fiscal of Manila, Reconsidered, Resolution, 137 SCRA 597.
351
Pelejo v. Court of Appeals, No. L-60800, October 18, 1982, 117 SCRA 666; Rivera v. Florendo, No. L-60066,
July 31, 1986, 143 SCRA 278.
352
Arroyo v. Vasquez, 42 Phil. 54 [1921].
353
Levy Hermanos v. Lacson, 71 Phil. 94 [1940].
354
Commissioner of Customs v. Cloribel, G. R. No. 20266, January 31, 1967, 19 SCRA 234.
355
Emilia v. Bado, G. R. No. 23685, April 25, 1968, 23 SCRA 183; Pio v. Marcos, G. R. No. 27849, April 30, 1974,
56 SCRA 726.
356
Calo v. Roldan, supra, note 284.
357
Buayan Cattle v. Quintillian, supra, note 315.
358
Roldan, Jr. v. Arca, G. R. No. 25434, July 25, 1975 65 SCRA 336; Abiera vs. Court of Appeals, G. R. No. 26294,
May 31, 1972, 45 SCRA 314.
359
Philippine Pacific Fishing Co., Inc. v. Luna, No. L-59070, March 15, 1982, 112 SCRA 604.
360
Nocnoc v. Vera, No. L-37737, February 27, 1979, 88 SCRA 529.
361
BP Blg. 129, Sec. 33; Vide Refer to Rules of Court, Rule 70, Sec. 15.
362
Associated Labor Union (ALU-TUCP) v. Borromeo, supra, note 341.
363
Kaisahan ng mga Manggagawa v. Sarmiento, supra, note 341.
364
National Power Corporation v. Vera, G.R. No. 83558, 27 Feb. 1989, 170 SCRA 721.
365
Filipinas Marble Corporation v. Intermediate Appellate Court, No. L-68010, May 30, 1986, 142 SCRA 180.
366
Filipinas Marble Corporation v. Intermediate Appellate Court, ibid.; Government Service Insurance System v.
Court of Appeals, G.R. No. 42278, January 20, 1989, 169 SCRA 244.
367
Searth Commodities Corporation v. Court of Appeals, supra, note 311; Republic of the Philippines v. Court of
Appeals G.R. No.107943, Feb. 3, 2000.
368
Sec. 55, CARP Law.
369
Sec. 31-A, Proclamation No. 50-A; Mantruste System v. Court of Appeals, G.R. Nos. 86540-41, November 6,
1989, 179 SCRA 136.
370
Tablarin v. Gutierrez, No. L-78164, July 31, 1987, 152 SCRA 730.
371
D.C. Crystal, Inc. v. Laya, G.R. No. 53597, February 28, 1989, 170 SCRA 734.

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372
Philippine Commercial and Industrial Bank v. National Mines and Allied Workers Union (NAMAWU-MIF), No.
L-50407, August 19, 1982, 115 SCRA 873; Romulo v. Yñiguez, No. L-71908, February 4, 1986, 141 SCRA 263;
Rivera v. Florendo, No. L-57586, October 8, 1986, 144 SCRA 658.
373
Philippine National Bank v. Adil, supra, note 312; Ramos, Sr. v. Court of Appeals, G.R. Nos. 80908-09, May 24,
1989, 173 SCRA 550.
374
The Chief of Staff, AFP v. Guadiz, Jr., supra, note 342.

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Civil Procedure

Receivership

1. Appointment of a Receiver

The general rule is that neither party to the litigation should be appointed as a receiver without the
375
consent of the other because a receiver is supposed to be an impartial and disinterested person.
A clerk of court should not be appointed as a receiver as he is already burdened with his official
376
duties.

2. Specific situations when a receiver may be appointed

2.1 Family Code, Article 101

If a spouse without just cause abandons the other or fails to comply with his/her obligations
to the family, the aggrieved spouse may petition the court for receivership.

2.2 Rules of Court, Sec. 41, Rule 39

The court may appoint a receiver of the property of the judgment obligor; and it may also
forbid a transfer or other disposition of, or any interference with, the property of the judgment
obligor not exempt from execution.

2.3 After the perfection of an appeal, the trial court retains jurisdiction to appoint a receiver of
the property under litigation since this matter does not touch upon the subject of the
377
appeal.

2.4 After final judgment, a receiver may be appointed as an aid to the execution of
378
judgment.

2.5 Appointment of a receiver over the property in custodia legis may be allowed when it is
justified by special circumstances as when it is reasonably necessary to secure and protect
379
the rights of the real owner.

375
Alcantara v. Abbas, No. L-14890. September 30, 1963, 9 SCRA 54.
376
Abrigo v. Kayanan, No. L-28601, March 18, 1983, 121 SCRA 20.
377
Rules of Court, Rule 41, Sec. 9; Acuña v. Caluag, 101 Phil. 446 [1957].
378
Philippine Trust Company v. Santamaria, 53 Phil. 463 [1929].
379
Dolar v. Sundiam, No. L-27631, April 30, 1971, 38 SCRA 616.

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Civil Procedure

Replevin

1. Steps in the Issuance and Implementation of a Writ of Replevin

1.1 A party praying for the recovery of possession of a personal property files with the court
380
at the commencement of the action or before answer in application for a writ of replevin.

To accompany the application is the affidavit which should state that:

(1) that the applicant is the owner of the property claimed, particularly describing it,
or is entitled to the possession thereof;

(2) that the property is wrongfully detained by the adverse party, alleging the cause
of detention thereof according to the best of his knowledge, information, and belief;

(3) that the property has not been distrained or taken for a tax assessment or a fine
pursuant to law, or seized under a writ of execution or preliminary attachment , or
otherwise placed under custodia legis, or if so seized, that it is exempt from such
seizure or custody; and

(4) the actual market value of the property.

2. Notes

(1) The applicant of a writ of replevin need not be the owner for it is enough if he has a right
381
to possess it.

(2) Replevin cannot be availed of if the property is in custodia legis as where it is under
382
attachment or was seized under a search warant except:

383
a. when the seizure is illegal; and

b. where there is reason to believe that the seizure will not anymore be followed by
384
the filing of the criminal action in court or there are conflicting claims.

3. The defendant is entitled to the return of the property taken under a writ of replevin if the
following requisites are met:

(1) S/he posts a redelivery bond and

(2) S/he furnishes the plaintiff of a copy of the undertaking within five (5) days from taking

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and

385
(3) the bond is sufficient and in proper form.

380
Rules of Court, Rule 60, Sec. 1.
381
Yang v. Valdez, G. R. No. 73317, August 31, 1989, 177 SCRA 141.
382
Pagkalinawan v. Gomez, Nos. L-22585, December 16, 1967, 21 SCRA 1275; Rules of Court, Rule 60, Sec. 2 (c).
383
Bagalihog v. Fernandez, G. R. No. 96356, June 27, 1991, 198 SCRA 614.
384
Chua v. Court of Appeals, G. R. No. 79021, May 17, 1993, 222 SCRA 85.
385
Rules of Court, Rule 60, Secs. 5 and 6.

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Civil Procedure

Support Pendente Lite

1. Notes and Cases

1.1 Support pendente lite can be granted by the court in two (2) instances:

(1) civil action for support; and

(2) criminal action where civil liability includes support for the offspring as a
consequence of the crime.

1.2 Where the right to support is put in issue by the pleadings or the fact from which the right
to support arises is in controversy or has not been established, the court cannot grant
386
support pendente lite.

1.3 The amount of support pendente lite is not final in character in the sense that it can be
the subject of modification depending on the changing conditions affecting the ability of the
387
obligor to pay the amount fixed for support.

1.4 If an application for support pendente lite is denied, the remedy is certiorari.

1.5 Mere affidavits or other documents appearing in the record are sufficient basis for the
388
court to determine amount of support pendente lite.

1.6 Support pendente lite are allowed in criminal actions where the civil liability includes
support for the offspring as a consequence of the crime and the civil aspect thereof has not
389
been waived, reserved or instituted prior to its filing.

386
Francisco v. Zandueta, 61 Phil. 752 [1929].
387
San Juan v. Valenzuela, No. L-59906, October 23, 1982, 117 SCRA 926.
388
Reyes v. Ines-Luciano, No. L-48219, February 28, 1979, 88 SCRA 803.
389
Rules of Court, Rule 6, Sec. 6.

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Civil Procedure

PART III - SPECIAL CIVIL ACTIONS

The special civil actions are:

(1) Interpleader (Rule 62);

(2) Declaratory Relief (Rule 63);

(3) Certiorari, Prohibition and Mandamus (Rule 65);

(4) Quo Warranto (Rule 66);

(5) Expropriation (Rule 67);

(6) Foreclosure of Real Estate Mortgage (Rule 68);

(7) Partition (Rule 69);

(8) Forcible Entry and Unlawful Detainer (Rule 70); and

(9) Contempt (Rule 71).

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Civil Procedure

I. The Different Special Civil Actions

1. Interpleader

1. Requisites

(1) The plaintiff claims no interest in the subject matter or his claim is not disputed;

(2) There must at least be two (2) or more conflicting claimants;

(3) The parties to be interpleaded must make effective claims; and

(4) The subject matter must be one and the same.

2. Decisional Rules

Interpleader was found to be a proper action in an action of a lessee who does not know to whom to
390
pay rentals due to conflicting claims on the property; and in an action by a bank where the
391
purchaser of a cashier's check claims it was lost and another has presented it for payment. It was
however found to be improper in an action where defendants have conflicting claims against the
392
plaintiff; and an action where one of the defendants had earlier sued the plaintiff and secured a
judgment against him which has already become final. The action is barred by laches or
393
unreasonable delay.

3. Procedural Peculiarities

3.1 Upon the filing of the complaint, the court shall issue an order requiring the conflicting
394
claimants to interplead with one another.

3.2 The court may direct in the same order mentioned in the preceding paragraph that the
395
subject matter of the suit be paid or delivered to the court.

3.3 The summons shall be accompanied by copies of the complaint and order mentioned in
No. 1.

3.4 The defendants may file a motion to dismiss on the ground of the impropriety of the
interpleader action or on other appropriate grounds specified in Rule 16.

3.5 The defendants shall serve a copy of the answer not only to the plaintiff but also to their
co-defendants who may file their reply thereto.

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3.6 The effect of a failure to plead within the prescribed period is that, upon motion, the
defendant will be declared in default and thereafter renders judgment barring him from any
claim in respect to the subject matter.

390
Pagkalinawan v. Rodas, 80 Phil. 281 [1948].
391
Mesina v. Intermediate Appellate Court, No. L-70145, November 13, 1986, 145 SCRA 497.
392
Beltran v. People’s Homesite and Housing Corporation, No. L-25138, August 28, 1969, 29 SCRA 145.
393
Wack Wack Golf and Country Club, Inc. v. Won, No. L-23851, March 26, 1976, 70 SCRA 165.
394
Rules of Court, Rule 62, Sec. 2.
395
Ibid.

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Civil Procedure

2. Declaratory Relief and Similar Remedies

1. Requisites

396
(1) There must be a justiciable controversy;

(2) The controversy must be between persons whose interest is adverse;

(3) The parties must have legal interest in the controversy;

397
(4) The controversy must be ripe for judicial determination; and

398
(5) The petition must be filed before there is a breach or violation.

2. Procedural Peculiarities

2.1 The petition must be filed before there is a breach of contract or violation of the statute or
399
ordinance.

400
2.2 Third-party complainant is not allowed.

2.3 Except in actions for quieting of title, the court action on an action for declaratory relief is
discretionary. Thus, the court motu proprio or upon motion may refuse to exercise the power
to declare rights and to construe instruments in any case where a decision would not
terminate the uncertainty or controversy which gave rise to the action or in any case where
401
the declaration or construction is not necessary under the circumstances.

2.4 When a statute, executive order or any government regulation or ordinance is alleged to
be unconstitutional, the Solicitor-General should be notified by the party assailing the
402
same. If the validity of a local government ordinance is in question, the prosecutor or
403
attorney of the local government should be notified.

3. Declaratory Relief Improper in the Following Cases

404
(1) to obtain judicial declaration of citizenship;

(2) to seek relief on moot questions or to resolve hypothetical, abstract or theoretical


405
questions, or to decide claims which are uncertain;

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Civil Procedure

406
(3) to resolve political issues or questions;

407
(4) to test the correctness or validity of a court decision;

408
(5) to determine hereditary rights;

(6) when the petition is based upon the happening of a contingent event;

409
(7) when the petitioner is not the real party in interest; and

410
(8) when administrative remedies have not yet been exhausted.

396
Obiles v. Republic, 92 Phil. 864 [1953].
397
Board of Optometry v. Colet, G. R. No. 122241, July 30, 1996, 260 SCRA 88.
398
Rules of Court, Rule 63, Sec. 1.
399
Ibid.
400
Commissioner of Customs v. Cloribel, No. L-21036, June 30, 1977, 77 SCRA 459.
401
Rules of Court, Rule 63, Sec. 5.
402
Ibid.,Sec. 3.
403
Ibid.,Sec. 4.
404
Dy Poco v. Commissioner of Immigration, No. L-22313, March 31, 1966, 16 SCRA 615; Singson v. Republic,
No. L-21855, January 30, 1968, 22 SCRA 353.
405
Lim v. Republic, No. L-29535, February 27, 1971, 37 SCRA 783.
406
Dela Llana v. Commission on Elections, No. L-47245, December 9, 1977, 80 SCRA 525.
407
Tanda v. Aldaya, 52 O.G. No. 11, 5175 (September 15, 1956).
408
Edades v. Edades, 52 O.G. No. 11, 5149 (September 15, 1956).
409
Santos v. Aquino, 94 Phil. 65 [1953].
410
Ollada v. Central Bank, No. L-11357, May 31, 1962, 5 SCRA 297.

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Civil Procedure

3. Certiorari

1. Requisites

(1) A tribunal, board or officer exercises judicial or quasi-judicial function;

(2) It or s/he acts without or in excess of jurisdiction or with grave abuse of discretion; and

(3) There is no appeal nor plain, speedy and adequate remedy in the ordinary cause of law.

2. Terminology

(1) Without jurisdiction – absence of a legal power to determine a case.

(2) Excess of jurisdiction – the court has jurisdiction but fails to comply with the conditions
411
prescribed for its exercise.

(3) Grave abuse of discretion – judicial power is exercised capriciously, arbitrarily or


412
despotically due to passion or personal hostility.

3. Certiorari is not a proper remedy if appeal is available or it is lost through the fault of the
413
petitioner, except:

414
(1) appeal is not a speedy and adequate remedy;

415
(2) order is issued without or in excess of jurisdiction;

416
(3) in consideration of public welfare and for the advancement of public policy;

417
(4) order is a patent nullity;

418
(5) to avoid future litigation;

419
(6) to avoid a miscarriage of justice;

420
(7) in furtherance of the broader interest of justice and equities.

4. Before certiorari can be availed of, petitioner should first file a motion for reconsideration

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Civil Procedure

421
of the challenged order, resolution or decision, except in the following cases:

422
(1) in the interest of justice and public welfare and advancement of public policy;

423
(2) order was issued without or in excess of jurisdiction;

424
(3) order is a patent nullity as when petitioner's right to due process was denied in the
425 426
lower court or petitioner has been unlawfully deprived of his right to appeal;

(4) when relief is extremely urgent, there is no more need to wait for the resolution of a
427
motion for reconsideration;

(5) when the questions raised and passed upon in the lower court are the same as those to
428
be passed upon in the certiorari case; and

429
(6) question is purely of law.

5. Requirements Regarding the Extrinsic Sufficiency of the Petition

430
(1) it must be verified;

431
(2) accompanied by a certificate of non-forum shopping;

(3) accompanied with certified true copy of the judgment, order or resolution subject thereof,
432
copies of all pleadings and documents relevant and pertinent thereto;

(4) proof of service pursuant to Rule 13, Section 1; and

(5) if not filed and served personally, then, it should be accompanied by a written
433
explanation why personal service was not resorted to.

6. Time to File

Within sixty (60) days from notice of decision, resolution or order sought to be assailed, or from the
434
denial of petitioner’s motion for reconsideration or new trial filed in due time after judgment.

7. Decisions

7.1 As a general rule, certiorari is not a proper remedy to assail the order of the trial court

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Civil Procedure

435
denying a demurrer to evidence in a civil case. Motion for reconsideration and, in case of
denial, appeal, are the proper remedy.

411
Leung Ben v. O’Brien, 38 Phil. 182 [1918]; Tengco v. Jocson, 43 Phil. 715 [1922].
412
Gamboa v. Cruz, No. L-56291, June 27, 1988, 162 SCRA 642; Filinvest Credit Corporation v. Intermediate
Appellate Court, No. L-65935, September 30, 1988, 166 SCRA 155.
413
Dillena v. Court of Appeals, No. L-77660, July 28, 1988, 163 SCRA 630; Velasco Vda. De Caldito v. Segundo,
No. L-58187, September 30, 1982, 117 SCRA 573.
414
Saludes v. Pajarillo, 78 Phil. 754 [1947].
415
Philippine National Bank v. Florendo, G. R. No. 62082, February 26, 1992, 206 SCRA 582.
416
Jose v. Zulueta, No. L-16598, May 31, 1961, 2 SCRA 574.
417
Marcelo v. De Guzman, No. L-29077, June 29, 1982, 114 SCRA 657.
418
St. Peter Memorial Park, Inc. v. Campos, Jr., No. L-38280, March 21, 1975, 63 SCRA 180.
419
Escudero v. Dulay, No. L-60578, February 23, 1988, 158 SCRA 69.
420
Marahay v. Melicor, G. R. No. 44980, February 6, 1990, 181 SCRA 811.
421
Butuan Bay Wood Export Corporation v. Court of Appeals, No. L-45473, April 28, 1980, 97 SCRA 297.
422
Jose v. Zulueta, supra, note 416.
423
Philippine Consumers Foundation, Inc. v. National Telecommunications Commission, No. L-63318, November
25, 1983, 125 SCRA 845.
424
Aquino v. National Labor Relations Commission, G. R. No. 98108, September 3, 1993, 226 SCRA 76.
425
Bache and Co. (Phil.), Inc. v. Ruiz, No. L-32409, February 27, 1971, 37 SCRA 823.
426
National Electrification Administration v. Court of Appeals, No. L-32490, December 29, 1983, 126 SCRA 394.
427
Vda. de Sayman v. Court of Appeals, No. L-25596, April 28, 1983, 121 SCRA 650.
428
Peroxide Philippines Corporation v. Court of Appeals, G. R. No. 92813, July 31, 1991, 199 SCRA 882.
429
Central Bank v. Cloribel, No. L-26971, April 11, 1972, 44 SCRA 307.
430
Rules of Court, Rule 65, Sec. 1.
431
Ibid.
432
Ibid.
433
Rules of Court, Rule 13, Sec. 11.
434
Rules of Court, Rule 65, Sec. 4.
435
Asian Trading Corporation v. Court of Appeals, G. R. No. 76276, February 15, 1999, 303 SCRA 152.

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Civil Procedure

4. Prohibition

1. Requisites

(1) a tribunal, corporation, board, officers or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty arising from an office, trust, or station or
unlawfully excludes another from the use or enjoyment of a right or office to which the
plaintiff is entitled; and

(2) there is no other plain, speedy and adequate remedy in the ordinary course of law.

2. Decisional Rules

2.1 Mandamus is an appropriate remedy to compel a corporation to grant its monthly


436
salaried employees holiday pay.

2.2 Mandamus is not proper to compel a school to enroll a student for academic deficiencies
437
because this involves the exercise by the school of discretion under academic freedom.

2.3 Mandamus will not lie against the President or Congress because of the principle that
438
the judiciary is a co-equal department of the latter.

2.4 Failure to exhaust administrative remedies is generally fatal to an action for


439 440
mandamus. The exception is when the question is purely of law.

436
Mantrade/FMMC Division Employees and Workers Union v. Bacungan, No. L-48437, September 30, 1986, 144
SCRA 510.
437
University of the Philippines v. Ayson, G. R. No. 88386, August 17, 1989, 176 SCRA 571.
438
Suanes v. Chief Accountant of the Senate, 81 Phil. 818 [1948] Resolution on the Motion for Reconsideration, 81
Phil. 877 [1948].
439
Aquino v. Mariano, No. L-30485, May 31, 1984, 129 SCRA 532.
440
One Heart Sporting Club, Inc. v. Court of Appeals, No. L-53790, October 23, 1981, 108 SCRA 416.

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Civil Procedure

5. Quo Warranto

1. Definition

A quo warranto is a prerogative writ by which the Government can call upon any person to show by
441
what warrant he holds a public office or exercises a public franchise.

2. Quo Warranto as distinguished From Election Contest

If the dispute is as to the counting of votes or on matters connected with the conduct of the election,
442
quo warranto is not the proper remedy but an election protest. When the dispute is on the
443
ineligibility of a person sought to be ousted, quo warranto is the proper action.

3. Peculiarities of Proceedings

3.1 When the Solicitor General or a public prosecutor commences the action at the instance
of another person, leave of court must first be secured.

3.2 The motion for leave must be set for hearing with notice to the respondent so that he
may be heard; and

3.3 The court issues the order allowing the filing of the action within the period fixed therein.

441
3 Moran 208 [1970].
442
Caesar v. Garrido, 53 Phil. 97 [1929].
443
Fortuno v. Palma, No. L-70203, December 18, 1987, 156 SCRA 691.

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Civil Procedure

6. Expropriation

1. Requisites For Exercise of Right

(1) due process of law – compliance with the rules set down (Rule 67);

(2) payment of just compensation; and

444
(3) taking must be for public use.

2. Two (2) Stages in Expropriation Proceedings

2.1 Determination of the authority of the plaintiff to exercise the power of eminent domain
and the propriety of its exercise in the context of the facts. This stage is terminated by either
an order of dismissal of the action or order of the condemnation declaring that expropriation
445
is proper and legal. These orders are final and therefore appealable.

2.2 Determination of just compensation

This is done with the assistance of not more than three (3) commissioners. The order fixing
446
just compensation is also final and appealable. Just compensation is to be determined as
of the date of the taking of the propriety or the filing of the complaint, whichever comes first.

444
J. M. Tuazon and Co., Inc. v. Land Tenure Administration, No. L-21064, June 30, 1970, 33 SCRA 882.
445
Municipality of Biñan v. Garcia, G. R. No. 69260, December 22, 1989, 180 SCRA 576.
446
Ibid.

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Civil Procedure

7. Foreclosure of Real Estate Mortgage

1. The judgment in a judicial foreclosure proceeding should:

(1) make a finding of the amount due the plaintiff including interest, cost and other
charges approved by the court;

(2) order defendant to pay said amount within a period of not less than ninety (90)
days nor more than one hundred twenty (120) days from entry of judgment; and

(3) if the defendant defaults, the court should order the sale at public auction of the
mortgaged property.

2. Distinction Between Right of Redemption and Equity of Redemption

Equity of Redemption is the right of the defendant mortgagor to extinguish the mortgage and retain
ownership of the property by paying the amount fixed in the decision of the court within ninety (90) to
one hundred twenty (120) days after entry of judgment or even after the foreclosure sale but prior to
447
its confirmation. On the other hand, right of redemption is the right granted to the debtor-
mortgagor, his successor-in-interest or any judicial creditor of said debtor-mortgagor or any person
having a lien in the property subsequent to its mortgage or deed of trust under which the property is
sold to redeem the property within one (1) year from the registration of the sheriff’s certificate of
448
foreclosure sale.

For as long as the sale have not been validly confirmed, the equity of redemption may be exercised
449
by the mortgagor or his successors-in-interest.

3. Writ of Possession in Judicial Foreclosure

After the foreclosure sale is confirmed, the court, upon motion, may issue a writ of possession to
install the buyer at auction into possession of the property sold.

4. Deficiency Judgment

Some rules on deficiency judgment are:

(1) A motion for deficiency judgment may be made only after the sale and after it becomes
450
known that a deficiency exists.

451
(2) Deficiency judgment cannot be rendered against a non-resident defendant.

(3) No deficiency judgment may be rendered against the owner who is not a mortgagor and

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Civil Procedure

has not assumed personal liability for the debt. The remedy is an ordinary action against the
452
debtor.

453
(4) If the debtor dies, the deficiency may be filed as a claim against his estate.

447
Rules of Court, Rule 68, Sec. 52; Limpin v. Intermediate Appellate Court, No. L-70987, September 29, 1988, 166
SCRA 87.
448
Rules of Court, Rule 39, Sec. 29; De Castro v. Intermediate Appellate Court, No. L-73859, September 26, 1988,
165 SCRA 654.
449
Limpin v. Intermediate Appellate Court, supra, note 447.
450
Governor of the Philippine Islands v. Torralba Viuda de Santos, 61 Phil. 689 [1935].
451
El Banco Español-Filipino v. Palanca, 37 Phil. 921 [1918].
452
Philippine Trust Co. v. Echaus Tan Siua, 52 Phil. 852 [1929].
453
Rules of Court, Rule 86, Sec. 7.

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Civil Procedure

8. Partition

1. Two Stages of the Action

1.1 First Stage – Determination of the propriety of partition

This involves a determination of whether the subject property is owned in common and
whether all the co-owners are made parties in the case. The order may also require an
accounting of rents and profits recovered by the defendant. This order of partition is
454
appealable. If not appealed, then the parties may partition the common property in the
way they want. If they cannot agree, then the case goes into the second stage. However, the
455
order of accounting may in the meantime be executed.

1.2 Second Stage – The actual partitioning of the subject property

This is also a complete proceeding and the order or decision is appealable.

2. Prescription of Action

Action for partition is unprescriptible for as long as the co-owners expressly or impliedly recognize
456
the co-ownership. However, if a co-owner repudiates the co-ownership and makes known such
repudiation to the other co-owners, then partition is no longer a proper remedy of the aggrieved co-
457
owner. S/he should file an accion reivindicatoria which is prescriptible.

3. Some Decisions

3.1 When there was a prior partition, the fact that the share of each co-heir has not been
technically described and the title over the whole lot remains uncancelled does not negate
such partition. There can be no partition again because there is no more common
458
property.

3.2 Oral partition of land when the same is fully consummated is valid and binding upon the
459
parties thereto.

454
Miranda v. Court of Appeals, No. L-33007, June 18, 1976, 71 SCRA 295.
455
De Mesa v. Court of Appeals, G. R. No. 109387, April 25, 1994, 231 SCRA 773.
456
Civil Code, Art. 494.
457
Roque v. Intermediate Appellate Court, No. L-75886, August 30, 1988, 165 SCRA 118.

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Civil Procedure

458
Noceda v. Court of Appeals, G. R. No. 119730, September 2, 1999, 313 SCRA 504.
459
Crucillo v. Intermediate Appellate Court, G. R. No. 65416, October 26, 1999, 317 SCRA 351.

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Civil Procedure

9. Forcible Entry and Unlawful Detainer

1. Nature of Accion Interdictal

It is:

(1) a special civil action involving a realty;

(2) subject to the Rules on Summary Procedure;

(3) under the original exclusive jurisdiction of first level courts;

(4) nature of the action is determined by the allegation of the complaint and the character of
460
the relief sought; and

(5) one co-owner may institute the action.

2. Immediate Execution and How to Stay It

A decision ejecting the defendant in a forcible entry or unlawful detainer case is immediately
461
executory. But the judge should not order immediate execution in his decision. There must be
462 463
notice of the judgment and a motion with notice to the adverse party.

To stay execution, the defendant should:

(1) perfect his appeal in due time;

(2) files a sufficient supersedeas bond, approved by the Municipal Trial Court; and

(3) during the pendency of the appeal, s/he deposits with the appellate court the amount of
rent due from time to time under the contract, if any, as determined by the judgment of the
464
Municipal Trial Court on or before the tenth (10th) day of each succeeding month. But
upon motion of the plaintiff within ten (10) days from the perfection of the appeal to the
Regional Trial Court, the court may still issue a preliminary mandatory injunction to restore
the plaintiff in possession if the court is satisfied that the defendant’s appeal is frivolous or
465
dilatory, or that the appeal of the plaintiff is prima facie meritorious.

3. Important Decisional Rules on Unlawful Detainer

3.1 A covenant to renew a lease contract which makes no provision as to the renewal or
extension implies an extension or renewal upon the same terms as provided in the original

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Civil Procedure

466
lease contract.

467
3.2 An action for ejectment is not abated by the death of the defendant. The heirs
468
become the substitute defendants.

3.3 Where there is a defense of tenancy, there must be a preliminary hearing on the
469
question of tenancy relations. If there is a prima facie showing of tenancy, the court
470
should dismiss the case for lack of jurisdiction (jurisdiction belongs to the DARAB).

471
3.4 The lessee is not permitted to deny the lessor's title.

3.5 A person who occupies the land of another at the latter's tolerance or permission,
without any contract between them is necessarily bound by an implied promise that he will
vacate upon demand, failing which an action for unlawful detainer may be instituted against
472
him.

This rule as to tolerance does not hold true in a case where there was forcible entry at the
start, but the lawful possessor did not attempt to oust the intruder for over one (1) year, and
473
only thereafter filed forcible entry suit following demand to vacate.

Elsewise stated, the tolerance must be presented right from the start of possession sought
474
to be recovered to categorize a cause of action as one of unlawful detainer.

475
3.6 Demand upon a tenant may be oral. If demand is made upon the person found on the
premises, it must be done by serving upon him notice of such demand or by posting such
476
notice on the premises if no person be found thereon.

3.7 When failure to pay rent or comply with the condition of lease is the ground for
ejectment, plaintiff should give two (2) demands:

(1) demand to pay rental or comply with conditions of the lease and if this is not
complied with,

(2) demand to vacate within fifteen (15) days in case of land or five (5) days in case
of buildings from notice thereof. The two (2) demands may be embodied in one (1)
477
letter. Demand to pay or comply makes lessee a deforciant while demand to pay
and vacate is a requirement for filing the action for unlawful detainer.

3.8 When the lease has expired, there is no need of prior demand to vacate. The lessor can
immediately file an action for ejectment. Demand is necessary only when the ground for
478
ejectment is failure to pay rent or comply with the conditions of the lease.

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Civil Procedure

Notice and demand to vacate is, however, required on a lease on a month-to-month period
to render effective the termination of the lease upon the expiration of the month, and prevent
479
an implied renewal of the lease.

The notice provision is the one given after the expiration of the lease period for the purpose
480
of aborting an implied renewal of the lease.

3.9 An alternative demand to either renew the expired lease contract at a higher rental rate
or vacate is not a definite demand to vacate and therefore, insufficient basis for the filing of
481
an action for unlawful detainer.

3.10 When there is no definite period for a lease but rental is paid from month to month, then
under Article 1687 (Civil Code), the period is fixed which is from month to month. When the
lessor gave the lessee a demand to vacate at the end of the month and he fails to do so, an
482
action for unlawful detainer may be filed against him.

483
3.11 Refusal to collect or accept rentals is not a defense. There must be consignation.
484
Acceptance of back rentals after demand to vacate does not legitimize possession.
Consignation must be where Sec. 5(b) provides either in court or in bank, in the name of and
485
with notice to the lessor and not elsewhere.

460
Abrin v. Campos, G. R. No. 52740, November 12, 1991, 203 SCRA 420.
461
Lu v. Siapno, G. R. No. A. M. MTJ-3-99-1199, July 6, 2000; Felongco v. Dictado, A. M. No. RTJ-8650, June 28,
1993, 223 SCRA 696.
462
Dy v. Court of Appeals, G. R. No. 93756, March 22, 1991, 195 SCRA 585.
463
Kaw v. Anunciacion, A. M. No. MTJ-93-811, 242 SCRA 1.
464
Rules of Court, Rule 70, Sec. 19.
465
Ibid., Sec. 20.
466
Ledesma v. Javellana, No. L-55187, April 28, 1983, 121 SCRA 794.
467
Vda. de Salazar v. Court of Appeals, G. R. No. 121510, November 23, 1995, 250 SCRA 305.
468
Cañiza v. Court of Appeals, G. R. No. 110427, February 24, 1997, 268 SCRA 640.
469
Ignacio v. Court of First Instance of Bulacan, No. L-27897-98, October 29, 1971, 42 SCRA 89; Bayog v. Natino,
G. R. No. 118691, July 5, 1996, 258 SCRA 378.
470
Baranda v. Padios, No. L-61371, October 21, 1987, 154 SCRA 720.
471
Rules of Court, Rule 131, Sec. 3 (b); Reyes v. Villaflor, No. L-15755, May 30, 1961, 2 SCRA 247.
472
Dakudao v. Consolacion, No. L-54753, June 24, 1983, 122 SCRA 877.

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Civil Procedure

473
Muñoz v. Court of Appeals, G. R. No. 102693, September 23, 1992, 214 SCRA 216.
474
Refugia v. Court of Appeals G.R. No. 118284 July 5, 1996, 258 SCRA 211.
475
Jakihaca v. Aquino, G. R. No. 83982, January 12, 1990, 181 SCRA 67.
476
Rules of Court, Rule 70, Sec. 2.
477
Zobel v. Abreu, 52 O.G. No. 7, 3592 (July 16, 1956).
478
Co Tiamco v. Diaz, 75 Phil. 672 [1946).
479
Rivera v. Florendo, supra, note 351; Yap v. Cruz, G. R. No. 89307, May 8, 1992, 208 SCRA 692.
480
Chua v. Court of Appeals, G. R. No. L-106573 March 27, 1995, 60 SCRA 57; Gamboa’s Incorporated v. Court of
Appeals, No. L-23634, July 29, 1976, 72 SCRA 131.
481
Penas, Jr. v. Court of Appeals, G. R. No. 112734, July 7, 1994, 233 SCRA 744.
482
Crisostomo v. Court of Appeals, No. L-43427 August 30, 1982, 116 SCRA 199.
483
Velez v. Avelino, No. L-48448, February 20, 1984, 127 SCRA 602; Soco v. Militante, No. L-58961, June 28,
1983, 123 SCRA 160; Uy v. Court of Appeals, G. R. No. 78538, October 25, 1989, 178 SCRA 671.
484
Cursino v. Bautista, G. R. No. 50335, August 7, 1989, 176 SCRA 65.
485
Medina v. Court of Appeals, G. R. No. 104615, August 24, 1993, 225 SCRA 607.

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Civil Procedure

10. Contempt

Contempt of court is a defiance of the authority, justice or dignity of the court, such conduct as tends
to bring the authority and administration of the law into disrespect of, to interfere with, or prejudice
parties litigant or their witnesses during litigation. It is defined as a disobedience to the court by
setting up an opposition to its authority, justice and dignity. It signifies not only a willful disregard or
disobedience to the court’s order but such conduct as tends to bring the authority of the court and
the administration of law into disrepute or in some manner to impede the due administration of
486
justice.

1. Two (2) kinds of Contempt

(Refer to the Table of Differences Between Direct and Indirect Contempt, infra)

2. Two (2) Aspects of Contempt

2.1 Civil Contempt is the failure to do something ordered to be done by a court or a judge for
487
the benefit of the opposing party therein.

2.2 Criminal Contempt is conduct directed against the authority and dignity of a court or of a
judge, as in unlawfully assailing or discrediting the authority and dignity of a court or a judge
488
or in doing a forbidden act.

Note: A criminal contempt proceeding is in the nature of a criminal or quasi-criminal action


and, therefore, punitive in nature. A civil contempt proceeding is remedial and civil in nature.

3. Decisions

3.1 The violation of a TRO issued by the SEC or any quasi-judicial tribunal is criminal
489
contempt so that acquittal of the respondents is unappealable.

3.2 A writ of execution issued by a court after five (5) years from entry of final judgment is
490
void and disobedience thereto does not constitute indirect contempt.

4. Necessity of Hearing

Previous hearing is required under Rule 71, Section 3 of the Revised Rules of Court, where an arrest
and the subsequent detention of petitioner for her failure to appear at a hearing set by the trial judge
is based on the commission of an indirect contempt. Without that hearing, the order violated the
491
rules and deprived the petitioner of her liberty without due process.

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Civil Procedure

Where a lawyer fails to obey a subpoena and likewise committed direct contempt for having
disturbed the preliminary examination being conducted by the judge by repeatedly driving his jeep
and honking its horn in the vicinity of the court session hall for which the lawyer was ordered
arrested and confined in jail, the judge should issue a separate order for such direct contempt, and
another order requiring the lawyer to show cause why he should not be punished for disobedience to
492
its process, to give the lawyer a chance to explain his failure to appear as a witness.

5. Contempt by non-party

Generally, no contempt is committed by one not a party to the case. The remedy against such
493
person is either a civil or criminal action. However, persons who are not parties in a proceeding
may be declared guilty of contempt for willful violation of an order issued in a case if said persons
494
are guilty of conspiracy with any one of the parties in violating the Court’s order.

6. Power to punish for contempt to be exercised in preservative not vindictive principle; what
constitutes disobedience

Only in cases of clear and contumacious refusal to obey should the power be exercised. A bona fide misunderstanding of
the terms of the order or of the procedural rules should not immediately cause the institution of contempt proceedings. 'The
power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to retain the respect without which the administration of
justice must falter or fail. Such power being drastic and extraordinary in its nature xxx should not be resorted to xxx unless
495
necessary in the interest of justice.

486
Halili v. Court of Industrial Relations, No. L-24864, April 30, 1985, 136 SCRA 112.
487
People v. Godoy, G. R. Nos. 115908-09, March 29, 1995, 243 SCRA 64.
488
Ibid.
489
Yasay v. Recto, G.R. No. 129521, September 7, 1999, 313 SCRA 739.
490
Crucillo v. Intermediate Appellate Court, G.R. No. 65416, October 26, 1999.
491
Bulado v. Navarro, G.R. No. 59442, February 2, 1988, En Banc, Minute Resolution.
492
Gardones v. Delgado, A. M. No. 120-MJ, July 23, 1974, 58 SCRA 58.
493
Ayog v. Cusi, Jr., G. R. No. 46729, November 19, 1982, 118 SCRA 492.
494
Desa Enterprises, Inc. v. Securities and Exchange Commission, G. R. No. L-45430, September 30, 1982, 117
SCRA 321.
495
Villavicencio v. Lukban, 39 Phil. 778 [1919]; Gamboa v. Teodoro., 91 Phil. 270 [1952]; Sulit v. Tiangco, G. R.
No. L-35333, July 20, 1982, 115 SCRA 207; Lipata v. Tutaan, G. R. No. L-61643, September 29, 1983, 124 SCRA
877.

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TABLE 1

DIFFERENCES AMONG PROVISIONAL REMEDIES

DEFINITION GROUNDS PURPOSE COURT


WHICH CAN
GRANT

1. Preliminary A provisional a. In an action for As security for Supreme


Attachment remedy issued the recovery of a the Court, Court of
(Rule 57) upon order of specified amount or satisfaction of Appeals,
the court where damages, other any judgment Regional Trial
an action is than moral and that may be Court, Family
pending to be exemplary, on a recovered by Court,
levied upon the cause of action the claimant Metropolitan,
property or arising from law, Municipal and
properties of the contract, quasi- Municipal
adverse party contract, delict or Circuit Trial
therein, the quasi-delict against Courts
same to be held a party who is
thereafter by about to depart
the sheriff as from the
security for the Philippines with
satisfaction of intent to defraud
whatever his creditors;
judgment might
be secured in b. In an action for
said action by money or property
the attaching embezzled or
party against fraudulently
the adverse misapplied or
party converted to his
own use by a
public officer, or an
officer of a
corporation, or an
attorney, factor,
broker, agent or
clerk, in the course
of his employment
as such, or by any
other person in a
fiduciary capacity,
or for a willful
violation of duty;

c. In an action to
recover the
possession of
property unjustly or
fraudulently taken,

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Civil Procedure

detained or
converted, when
the property, or any
part thereof, has
been concealed,
removed or
disposed of to
prevent its being
found or taken by
the applicant or an
authorized person;

d. In an action
against a party who
has been guilty of
fraud in contracting
the debt or
incurring the
obligation upon
which the action is
brought, or in the
performance
thereof;

e. In an action
against a party who
has removed or
disposed of his
property, or is
about to do so, with
intent to defraud
his creditors;

f. In an action
against a party who
does not reside
and is not found in
the Philippines, or
on whom summons
may be served by
publication (Section
1)

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2. Preliminary An order a. That the To preserve Supreme


Injunction granted at any applicant is entitled the status quo Court, Court of
(Rule 58) stage of an to the relief or to resolve Appeals,
action or demanded, and the the last Regional Trial
proceeding prior whole or part of uncontested Court, Family
to the judgment such relief consists status quo Court,
or final order, in restraining the Metropolitan,
requiring a party commission or Municipal and
or a court, continuance of the Municipal
agency or a act or acts Circuit Trial
person to complained of, or in Courts
refrain from a requiring the
particular act or performance of an
acts. It may also act or acts, either
require the for a limited period
performance of or perpetually;
a particular act
or acts, in which b. That the
case it shall be commission,
known as a continuance or non-
preliminary performance of the
mandatory act or acts
injunction complained of
(Section 1) during the litigation
would probably
work injustice to
the applicant; or

c. That a party,
court, agency or a
person is doing,
threatening, or is
attempting to do, or
is procuring or
suffering to be
done, some act or
acts probably in
violation of the
rights of the
applicant
respecting the
subject of the
action or
proceeding, and
tending to render
the judgment
ineffectual (Section
3)

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Civil Procedure

3. Temporary An order which a. Matter is of To prevent Supreme


Restraining may issue upon extreme urgency; grave Court, Court of
Order (TRO) the filing of an and injustice and Appeals,
application for irreparable Regional Trial
preliminary b. The applicant injury to the Court, Family
injunction will suffer grave applicant Court,
forbidding the injustice and before the Metropolitan,
defendant to do irreparable injury application for Municipal and
the threatened before the matter a writ of Municipal
act until a can be heard on preliminary Circuit Trial
hearing on the notice injunction can Courts
application can be acted upon
be had

4. Receivership Provisional a. When it appears To preserve Supreme


remedy by from the verified the property Court, Court of
which the court application, and during the Appeals,
appoints a such other proof as pendency of Regional Trial
receiver as its the court may the litigation Court, Family
representative require, that the or to dispose Court,
and in behalf of party applying for of it according Metropolitan,
all the parties to the appointment of to the Municipal and
an action for the a receiver has an judgment Municipal
purpose of interest in the when it is Circuit Trial
preserving and property or fund finally Courts
conserving the which is the subject rendered or
property in of the action or otherwise to
litigation and to proceeding, and carry the
prevent that such property judgment into
possible or fund is in danger effect
wastage or of being lost,
dissipation or removed, or
otherwise to materially injured
carry the unless a receiver
judgment into be appointed to
effect administer and
preserve it;

b. When it appears
in an action by the
mortgagee for the
foreclosure of a
mortgage that the
property is in
danger of being
wasted or
dissipated or
materially injured,
and that its value is
probably
insufficient to

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Civil Procedure

discharge the
mortgage debt, or
that the parties
have so stipulated
in the contract of
mortgage;

c. After judgment,
to preserve the
property during the
pendency of an
appeal, or to
dispose of it
according to the
judgment, or to aid
execution when the
execution has been
returned
unsatisfied or the
judgment obligor
refuses to apply his
property in
satisfaction of the
judgment, or
otherwise to carry
the judgment into
effect;

d. Whenever in
other cases, it
appears that the
appointment of a
receiver is the most
convenient and
feasible means of
preserving,
administering or
disposing of the
property in litigation.

During the
pendency of an
appeal, the
appellate court may
allow an application
for the appointment
of a receiver to be
filed in and decided
by the court of
origin and the
receiver appointed

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Civil Procedure

to be subject to the
control of said court.

5. Replevin Court orders the a. Applicant is the To prevent Regional Trial


seizure of owner of the the subject Court, Family
chattels or property claimed, property from Court,
goods claimed particularly being Metropolitan,
by a party as describing it, or is disposed of Municipal, and
his which are entitled to the during the Municipal
allegedly possession thereof; pendency of Circuit Trial
wrongfully taken the case Courts
or detained by b. The property is
another person wrongfully detained
and to be by the adverse
delivered to the party, alleging the
former to be cause of detention
retained by him thereof according
during the to the best of his
pendency of the knowledge,
action information and
belief;

c. The property has


not been distrained
or taken of a tax
assessment or a
fine pursuant to
law, or seized
under a writ of
execution or
preliminary
attachment, or
otherwise placed
under custodia
legis, or if so
seized, that it is
exempt from such
seizure or custody;

d. The actual
market value of the
property.

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Civil Procedure

6. Support Order issued by When equity and To answer the Family Court
Pendente Lite a court in which justice may require material
an action for having due regard needs of the
support has to the probable applicant
been filed fixing outcome of the during the
an amount of case and such pendency of
support to be other the case
given by the circumstances as
adverse party to may suggest the
the applicant reasonability of
during the granting support
pendency of the pendente lite
case

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Civil Procedure

TABLE 2

BASIC CHARACTERISTICS OF PROVISIONAL REMEDIES

WHEN HOW EFFECTIVITY HOW DISSOLVED/


AVAILABLE GRANTED DISCHARGED
1. Preliminary At any stage Ex-parte/or During the By order of the court
Attachment of the action upon motion pendency of the after notice and hearing
but before and hearing case unless on the ground that the
entry of final earlier preliminary attachment
judgment discharged or was improperly or
quashed by the irregularly issued or
court enforced or the bond is
insufficient and when the
adverse party makes a
cash deposit or files a
counterbond executed to
the attaching party with
the clerk of court where
the application is made
in an amount equal to
that fixed by the court in
the order of attachment,
exclusive of cost
2. Preliminary At any stage Upon During the By order of the court
Injunction of the action motion and pendency of the upon affidavit of the party
but before hearing case unless enjoined or if it appears
judgment or earlier after hearing that
final order discharged or although the applicant is
quashed by the entitled to the injunction
court or restraining order, the
issuance or continuance
thereof would cause
irreparable damage to
the party or person
enjoined while the
applicant can be fully
compensated for such
damages as he may
suffer and the former
files a counterbond

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Civil Procedure

3. Temporary During the General Not more than a. Upon resolution by the
Restraining pendency of Rule: Inter- 20 days from court of the application
Order (TRO) the partes service upon for a writ of preliminary
application the person injunction or the
for a writ of (Summary sought to be expiration of the 20-day
preliminary hearing) enjoined period from service of
injunction the writ upon the party,
whichever comes first;
Exception:
TRO
granted by b. Upon affidavit of the
Judge for 72 party enjoined or after
hours – Ex- hearing if it appears that
parte although the applicant is
entitled to a TRO, the
issuance or continuance
thereof, would cause
irreparable damage to
the party enjoined while
the applicant can be fully
compensated for such
damage as he may
suffer upon the
applicant’s filing of a
counterbond
4. Receivership At any stage Inter-partes Until discharged a. Filing by the adverse
of the by the court party of a counterbond;
proceeding
and even b. If it is shown that the
after finality appointment of a
of judgment receiver was obtained
without sufficient cause;

c. The court motu proprio


or on motion shall
determine that the
necessity of a receiver
no longer exists

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TABLE 3

DIFFERENCES OF BONDS IN PROVISIONAL REMEDIES

PROVISIONAL WHETHER AMOUNT UNDERTAKINGS UNDER THE


REMEDY REQUIRED COUNTERBOND
1. Preliminary Required Discretionary with the To pay:
attachment court but not exceeding
the applicant’s claim 1. All costs which may be
adjudged to the adverse party;
and

2. All damages which the


adverse party may sustain by
reason of the attachment if the
court shall finally adjudge that
the applicant was not entitled
thereto
2. Preliminary Required Discretionary with the To pay all damages which the
injunction court adverse party may sustain by
reason of the injunction if the
court shall finally decide that
the applicant was not entitled
thereto
3. Temporary Required but When required, To pay all damages which the
Restraining the court may discretionary with the adverse party may sustain by
Order (TRO) exempt court reason of the injunction, if the
court shall finally decide that
the applicant was not entitled
thereto
4. Receivership Required Discretionary with the To pay damages the adverse
court party may sustain by reason of
the appointment of a receiver in
case the applicant shall have
procured such appointment
without sufficient cause
5. Replevin Required Double the value of the a. For the return of the property
property or its value to the adverse party
if such be adjudged; and

b. To pay to defendant such


damages as he may recover
from the applicant in the action
6. Support Not required Not applicable Not applicable
pendente lite

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Civil Procedure

TABLE 4

DIFFERENCES OF COUNTERBONDS IN PROVISIONAL REMEDIES

PROVISIONAL WHETHER IT MAY AMOUNT UNDERTAKINGS


REMEDY BE FILED UNDER THE
COUNTERBOND
1. Preliminary Yes Equal to that fixed by Payment of any
attachment the court in the order judgment that the
of attachment attaching party may
recover in the action
2. Preliminary Yes Discretionary with the Pay all damages which
injunction court the applicant may
suffer by the denial or
the dissolution of the
injunction or restraining
order
3. Temporary Yes. If a bond was Discretionary with the Pay all damages which
Restraining filed by the claimant, court the applicant may
Order (TRO) then a counterbond suffer by the denial or
may be filed by the the dissolution of the
adverse party; but if injunction or restraining
no bond is filed by the order
former, what the
adverse party can file
is a bond
4. Receivership Yes Discretionary with the To pay all damages
court which the applicant
may suffer by reason of
the acts, omissions, or
other matters specified
in the application or
ground for such
appointment
5. Replevin Yes Double the value of a. The delivery of the
the property as stated property or its value to
in the plaintiff’s the plaintiff if so
affidavit adjudged; and

b. To pay such
damages which the
plaintiff may recover
against the defendant
6. Alimony No Not applicable Not applicable
Pendente Lite

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Civil Procedure

TABLE 5

DIFFERENCES AMONG THE THREE (3) MODES OF APPEAL

ORDINARY PETITION FOR APPEAL BY


APPEAL REVIEW CERTIORARI
1. How appeal Ordinary appeal By filing a By filing a
is initiated by notice of petition for review petition for
appeal or record review on
on appeal certiorari
2. Where to a. From the From the From the
appeal Metropolitan, Regional Trial Regional Trial
Municipal and Court to the Court to the
Municipal Circuit Court of Supreme Court
Trial Courts to Appeals, a on a pure
the Regional decision of the question of law,
Trial Courts, and Regional Trial a decision of the
from the Court rendered Regional Trial
Regional Trial in the exercise of Court rendered
Courts to the its appellate in the exercise of
Court of Appeals jurisdiction its original
in decisions of jurisdiction
the Regional
Trial Court
rendered in the
exercise of their
respective
original
jurisdictions

b. From the
Metropolitan,
Municipal and
Municipal Circuit
Trial Courts to
the Court of
Appeals for
decisions
rendered by the
said courts in the
exercise of their
delegated
jurisdiction, in
which case the
Metropolitan,
Municipal and
Municipal Circuit

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Civil Procedure

Trial Courts act


as Regional Trial
Courts
3. Nature of Matter of right Matter of Matter of
appeal appellate court’s appellate court’s
discretion discretion
4. To whom Clerk of Court Clerk of Court of Clerk of Court of
appellate whose decision the Court of the Supreme
docket and is being appealed Appeals Court
other lawful
fees should be
paid
5. Payment of Not a requisite A requirement A requirement
appellate for perfection of for perfection of for perfection of
docket and appeal but a appeal appeal to be
other lawful ground for paid to the Clerk
fees as a dismissal if not of Court of the
requirement of paid on time Appellate Court
perfection of
appeal
6. Name of Appellant – party Petitioner – party Petitioner – party
parties appealing appealing appealing

Appellee – Respondent – Respondent –


adverse party adverse party adverse party
7. In special Not required Not required
Requirement proceedings and
of record on other cases of
appeal multiple or
separate appeals
8. Basic a. From the Memoranda Memorandum
document to Metropolitan, when required when required
be filed in the Municipal and by the Court of by the Supreme
appellate court Municipal Circuit Appeals Court
Trial Court to the
Regional Trial
Court,
memorandum

b. From the
Regional Trial
Court to the
Court of
Appeals, briefs

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9. Perfection Upon filing of the Upon timely Upon timely


of appeal as to notice of appeal filing of a petition filing of the
appellant in due time or if for review and petition for
record on appeal payment of review on
is required, upon corresponding certiorari and
approval of the docket and other payment of
record on appeal lawful fees docket and other
in due time lawful fees
10. When a. In appeal by Upon the Upon the
court whose notice of appeal perfection of the perfection of the
decision is – upon appeals filed in appeals filed in
being perfection of the due time and the due time and the
appealed appeal filed in expiration of the expiration of the
loses due time and the time to appeal time to appeal
jurisdiction expiration of the by the other by the other
time to appeal of parties parties
the other parties

b. In appeal by
record on appeal
– upon approval
of the records on
appeal filed in
due time and the
expiration of its
time to appeal of
the other parties
11. As to Question of fact, Question of fact, Only question of
questions question of law question of law, law
which may be and question of question of fact
raised fact and law and law
12. How Appellant – party Petitioner – party Petitioner – party
parties are appealing appealing appealing
referred to
Appellee – Respondent – Respondent –
adverse party adverse party adverse party

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TABLE 6

DIFFERENCES BETWEEN CERTIORARI, PROHIBITION AND MANDAMUS

CERTIORARI PROHIBITION MANDAMUS


1. Purpose of To annul or modify an To prevent commission Compel the performance
the writ act performed by or carrying out the act or act desired
respondent
2. Act sought Judicial or quasi-judicial Judicial, quasi-judicial or Legal duty
to be controlled functions ministerial functions
3. Respondent Persons exercising Persons exercising Persons having legal
judicial or quasi-judicial judicial, quasi-judicial duty
functions and ministerial functions
4. Nature of Corrective remedy and Preventive remedy and Directory remedy
the remedy refers to acts already refers to acts still to be commanding a person to
consummated done do a legal duty

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Civil Procedure

TABLE 7

DIFFERENCES BETWEEN PROHIBITION AND INJUNCTION

PROHIBITION INJUNCTION
1. Respondent Generally a court, tribunal or person Generally against a party in an
exercising judicial or ministerial functions action for injunction
2. Court’s Lack or excess of jurisdiction may be a Jurisdiction of the court is not
jurisdiction ground questioned
3. Nature of Always a main action with preliminary Can be a main action with
the remedy injunction as a provisional remedy preliminary injunction as a
provisional remedy

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Civil Procedure

TABLE 8

DIFFERENCES BETWEEN FORCIBLE ENTRY AND UNLAWFUL DETAINER

FORCIBLE ENTRY UNLAWFUL DETAINER


1. Nature of defendant’s Unlawful from the beginning Initially lawful, then it becomes
possession unlawful
2. Demand to vacate No need There is a need
3. Proof of prior possession Plaintiff must prove it Not necessary for plaintiff to prove it
4. From what point is the From forcible entry From demand to vacate
one (1) year period to file
action counted

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